Biden Rules
description
Transcript of Biden Rules
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Reform Of The Confirmation Process
SEN JOE BIDEN (D983085DE) CHAIRMAN OF SENATE JUDICIARY COMMITTEE
BIDEN RULES
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BIDEN RULES
Top Highlights
Length Of Remarks ndash 21 pages ~11040 words
RULE There Is A ldquoParicularly Srongrdquo Senae ldquoTradiionAgains Acing On Supreme Cour Nominaions In A
Presidenial Yearrdquo
ldquoThe radiion agains acing on Supreme Cour nominaions in a
Presidenial year is paricularly srongrdquo
RULE Presidens Should No Pu Forh A Supreme Cour
Nominaion Unil Afer November During An Elecion Year
ldquoMr Presiden where he Naion should be reaed o a consideraion o
consiuional philosophy all i will ge in such circumsances is parisan
bickering and poliical posuring rom boh paries and rom boh ends o
Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour
Jusice resigns omorrow or wihin he nex several weeks or resigns
a he end o he summer Presiden Bush should consider ollowinghe pracice o a majoriy o his predecessors and no--and no--name a
nominee unil afer he November elecion is compleedrdquo
RULE Any Issues Leaving The Supreme Cour Wih Only 8
Jusices Are Simply ldquoQuie Minorrdquo
ldquoOhers may re ha his approach would leave he Cour wih only eigh
members or some ime bu as I see i Mr Presiden he cos o such a
resul he need o reargue hree or our cases ha will divide he Jusices
our o our are quie minor compared o he cos ha a nominee he
Presiden he Senae and he Naion would have o pay or wha would
assuredly be a biter figh no mater how good a person is nominaed by he
Presiden i ha nominaion were o ake place in he nex several weeksrdquo
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BIDEN RULES
RULE Should A Divided Governmen Exis A Republican
Senae Is ldquoToally Eniledrdquo To Rejec The Nominee O A
Democra Presiden Who Is ldquoAtemping To Remake The Cour
In A Way Wih Which [A Republican Senae Would] Disagreerdquo
ldquoIn a divided Governmen he mus seek he advice o he Republican
Senae and compromise Oherwise his Republican Senae would be
oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagreerdquo
RULE The Consiuion Designed Voing On A Supreme
Cour Nominee To Be A ldquoPoliical Choice Abou Values And
Philosophyrdquo No A ldquoNeural Rulingrdquo
ldquoSenaors are no judges We are Senaors Our decision on a nominee
is no a neural ruling as a judge would render I is as he Consiuion
designed i a poliical choice abou values and philosophyrdquo
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BIDEN RULES
REFORM OF THE CONFIRMATION PROCESS (Senate - June 25 1992)
Mr BIDEN Mr Presiden I would like o apologize in advance or respassing on he Presidenrsquos ime and
he ime o he Senae In my over 19 years in he Senae I have never sough o speak beore he Senae
or as long a period as I sough oday in morning business
Bu he subjec o which I speak is somehing ha I have given a grea deal o hough been asked by he
Senae o spend some considerable ime hinking abou and i is exremely conroversial And in ligh o
he ac ha we are wihin a day o he ime ha hisorically he Supreme Cour Jusices make judgmens
abou wheher or no hey are going o say on or anoher year i seems somewha propiious alhough
I know o no Jusice who inends o resign--I do no mean o imply ha--my speech his morning is
abou reorming he confirmaion process and he need or a new dawn wih regard o how we conduc
ourselves relaive o he confirmaion process involving Supreme Cour nominees
Seven years ago Harvard law proessor Laurence Tribe refleced on wha was hen he second-oldes
Supreme Cour in hisory and he wroe
A grea Supreme Cour is a sor o Halleyrsquos Come in our consiuional universe a rare operaion arriving
once each lieime burning inensely in our legal firmamen or a brie period beore reurning o he
deep space o consiuional hisory
He added ha a quie period in which here were jus wo Supreme Cour nominaions in 15 years
was he calm beore he consiuional sorm ha surely lies aheadrsquo predicing ha someime in his
decade we will be ossed ino he urbulen process ha has gripped his Naion in he pas And
oday afer he naming o seven men o fill five vacancies on he Supreme Cour in jus 5 years we find
ourselves in he mids o he sorm Proessor Tribe orecass
In hese pas 5 years he US Senae has endured hree o he mos conenious confirmaion fighs in
he hisory o he Unied Saes
The 1986 nominaion o William Rehnquis who was confirmed by he mos voes cas agains him o any
judge o he Supreme Cour in our hisory up o ha poin
The 1987 rejecion o Rober Bork a he end o an epic conflic beween compeing consiuional visions
The subsequen wihdrawal o Douglas Ginsburg jus days afer Presiden Reagan had seleced him o
succeed Bork as his nominee
The fierce fligh in 1991 which none o us I suspec will ever orge over Clarence Thomasrsquo confirmaion
o he Cour which broke Chie Jusice Rehnquisrsquos record or receiving he mos negaive voes in
Senae hisory
The immediae produc o hese conflics he change in he Cour over he pas ew years has already
been dramaic Bu as Duke proessor Waler Dellinger poined ou here is every reason o believe
we may see as many as five more Jusices reire wihin he nex 4 years In all likelihood Mr Presiden
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BIDEN RULES
we sand a only he halway poin in he remaking o he Supreme Cour wih as many confirmaion
conroversies in he coming Presidenial erm as we saw over he pas wo erms combined
By he ime we arrive a he nex elecion year in 1996 here is a subsanial chance ha no member
o he Cour who was serving on he Cour in June o 1986 will remain on he bench Such a complee
replacemen o he Cour in jus 10 years has only one preceden since he Cour was permanenlyexpanded o nine members over 100 years ago Today as we sand a he midpoin in his dramaic
change I would like o discuss wha has ranspired over he pas ew years wih respec o he
confirmaion process
Mr Presiden I also wan o discuss he quesion o wha should be done i a Supreme Cour vacancy
occurs his summer Finally I wan o offer our general proposals or how I believe he nominaion and
confirmaion process should be changed or uure nominaions
Le me sar firs wih a consideraion o he confirmaion process o he pas decade As I menioned
earlier Presidens Reagan and Bush have named eigh nominees or six posiions on he Cour during
heir Presidenial erms This is no he firs ime in our hisory ha a srong ideological Presiden and his
loyal successor have combined o shape he Cour
Presidens Washingon and Adams made 18 nominaions o which 14 were confirmed and served
among he Courrsquos 6 Jusices
Presidens Lincoln and Gran nominaed 13 candidaes or he Cour o whom 9 were confirmed
and served
Presidens Roosevel and Truman named 13 Jusices all confirmed in heir combined erms in he
Whie House
Wha disinguished he Reagan-Bush Jusices rom hese hisorical parallels however is ha hal o
hem have been nominaed in a period o a divided Governmen In each o hese previous imes a
sweeping naionwide consensus exised as refleced by he elecion o boh poliical branches o like-
minded officials which jusified he sweeping changes ha ook place a he Supreme Cour
Bu over he pas wo decades Mr Presiden no such consensus has exised unlike he eras o which I
poined--Washingon-Adams Lincoln-Gran Roosevel-Truman
Since 1968 Republicans have conrolled he Whie House or 20 o 24 years Democras have conrolled
he Senae or 18 years o his period The public has no given eiher pary a mandae o remake heCour ino a body reflecive o a srong vision o our respecive philosophies and boh o our paries
should finally honesly admi o ha ac Boh o our paries should honesly have conceded his ac
Bu neiher has hus ar
O course his is no he firs period when a divided Governmen has been required o fill he hird branch
o Governmen Abou one-fifh o all Supreme Cour Jusices have been confirmed by a pary differen
rom he Presiden One-hird o all Jusices confirmed since 1930 have been approved under
hese circumsances
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BIDEN RULES
I was a Senae conrolled by progressive Republicans and Democras ha confirmed hree o Presiden
Hooverrsquos our nominees or he Cour and a Democraic Senae reviewed and approved Eisenhower
nominees Ye in hese previous periods o divided Governmen Mr Presiden indeed in some
periods where a Presiden and he Senae shared he same pary Presidens commonly have aken
he Consiuion a is word and asked or he Senaersquos advice--advice--as well as is consen These
Presidens have consuled wih he Senae abou heir choices or he Cour andor chose nominees
wih balanced or diverse ideologies Thus he conservaive Republican Hoover named conservaive
Chie Jusice Charles Evan Hughes bu also named a moderae Owen Robers and a liberal Benjamin
Cardoza he later Benjamin Cardoza afer heaed execuive-Senae consulaions
Similarly Presiden Eisenhowerrsquos choices or he Cour included conservaive John Harlan and Charles
Whitaker moderae Poter Sewar and liberals Earl Warren and William Brennan Even Presiden Nixon
who showed no relucance o ake ull advanage o Presidenial prerogaives balanced his choices o
conservaives Warren Burger and William Rehnquis wih hose o moderae Republican Harry Blackmun
and conservaive Democra Lewis Powell
This o course has no been he model ha Presidens Reagan and Bush have ollowed Indeed even
lacking he broad suppor or heir vision o he Cour which Presidens Washingon and Adams Lincoln
and Gran and Roosevel and Truman had Presidens Reagan and Bush have ried o recas he Cour in
heir ideological image as hese Presidens did
Pu anoher way This is no he firs ime ha a andem o Presidens have sough o remake he Supreme
Cour nor is i he firs ime ha divided Governmen has had o fill a number o seas in ha body
Bu i is he firs ime ha boh have been atemped simulaneously and ha more han anyhing else
has been a he roo o he curren conroversy surrounding he selecion o he Supreme Cour Jusices
I was o cope wih his sress a sress creaed by he decision o Presidens Reagan and Bush o atemp
o move he Cour ideologically ino a radical new direcion which his counry does no suppor i was
o cope wih his sress ha he modern confirmaion process was creaed And on his poin here
should be no doub and no uncerainy
The use ha Presidens Reagan and Bush made o he Supreme Cour nominaing process in a period
o divided Governmen is wihou parallel in our Naionrsquos hisory I is his power grab ha has unleashed
he powerul and diverse orces ha have ravaged he confirmaion process I he American people are
dissaisfied wih where hey find he process oday hey mus undersand where he discord ha has
come o characerize i began Wih Presidens Reagan and Bush and heir decision o cede power in henominaing process o he radical ligh wihin heir own adminisraion
I was in he ace o his unprecedened challenge o he Supreme Courrsquos selecion process ha we in
he Senae developed an unprecedened confirmaion process The cenerpiece o his new process was
a rank recogniion o he legiimacy o Senae consideraion o a nomineersquos judicial philosophy as par o
he confirmaion review
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BIDEN RULES
I ask unanimous consen a his poin ha a previous speech I have made on he Senaersquos righ o look a
and obligaion o look a he ideology o he nominees be prined in he Record
[removed previous esimony insered ino he record]
Mr BIDEN Mr Presiden a he ime I firs se orh his noion during he Bork confirmaion debae i was
a widely conroversial noion ha is ha we as well as he Presiden had a righ o look a ideology Ye
scholarly works reaffirmed by he recen aricles o Pro David Srauss and Cass Sunsein have always
ound a solid basis or his view in he inenions o our Framers and in he hisory o our Naion
In my view he debae over he Senaersquos review o ideology has been ruiul We have quashed he myh
ha he Senae mus deer o a Presidenrsquos choice o a Supreme Cour Jusice he men and women a he
apex o he independen hird branch o Governmen As he Senae properly does or nominees in he
execuive branch he role o he Senae as a vial parner in reviewing Supreme Cour nominaions has
been enhanced And he debae over his role caused even hose who were iniially skepical like Pro
Henry Monaghan who oulined he grounds or his conversion in a 1988 aricle in he Harvard Law Review
o join in he broad consensus over he propriey o more acive Senae paricipaion in he process
More undamenally Mr Presiden he serious and proound debae ha he Bork nominaion sparked
was among he mos imporan naional discussions abou our Consiuion is meaning and he
direcion o our Supreme Cour in his cenury
Beore he Bork confirmaion figh he legacy o he Warren cour was seen as enuous by scholars and
was ill suppored by he public The legal righ hough ha judicial acivism was a rallying cry ha would
move America agains he Courrsquos projecion o proecion o personal reedoms is one personone voe
docrine and oher progressive decisions ha he legal righ hough had no popular suppor and less
legal oundaion
And he legal lef prior o he Bork figh eared ha he righ migh be correc in is assessmen o
popular opinion ha is ha he warren cour and is major decisions were no popularly suppored Bu
he public reacion o Judge Borkrsquos views is rejecion o he righrsquos legal philosophy and judicial noions
proved jus he opposie
And while some aspecs o he Warren Cour decisions remain under assaul paricularly in he area o
criminal law ohers have been irrevocably secured in he hears and minds o mos Americans such as
he Courrsquos recogniion o he righ o privacy a righ ha i you recall Mr Presiden prior o he Bork
figh he ideological righ in his counry hough was no suppored by Americans
This could no have been said beore he Bork confirmaion figh And ye i can be saely proclaimed
oday ha Americans--Americans--srongly suppor he righ o privacy and find ha here is such a
righ proeced in he Consiuion Nor do I limi he success o his process o he Bork rejecion only I
am equally saisfied albei or differen reasons as o how he process uncioned in approving Jusices
Kennedy and Souer
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BIDEN RULES
As I said when I suppored heir confirmaions neiher man is one whom I would have chosen had I been
Presiden Bu each reflecs a balanced selecion a nonideological conservaive ha sands beween he
Whie House philosophy and he Senae
I migh jus noe parenheically in he decision yeserday on school prayer or prayer beore
convocaions in public schools Jusices Souer and Kennedy ook a posiion diamerically opposed oha ha has been proffered by his adminisraion and he previous one or he pas 11 years
While I have disagreed wih some o he decisions by each o hese wo Juriss I know ha Presiden
Bush mus say he same hing Tha he disagrees wih some o he decisions o he wo men Kennedy
and Souer Bu I offer hem as examples Mr Presiden ha boh men have issued some opinions ha
I sharply rejec Bu in a period o divided Governmen boh rom he Cour o compromise candidaes
who are appropriae or consideraion and whose confirmaions I suppored
In my view he conemporary confirmaion process uncioned well in rejecing Judge Bork and in
approving Jusices Kennedy and Souer And ye sadly even in so succeeding one could see wihin he
process he seeds o an explosion ha was o come wih he Thomas nominaion and he desrucive
orces ha were going o ear i apar
As I said earlier he roo o he curren collapse o he confirmaion process is he adminisraionrsquos
campaign o make he Supreme Cour an agen o an ulrarigh conservaive social agenda which lacks
suppor in he Congress and in he counry
I would jus poin ou again parenheically Mr Presiden ha he enire social agenda o he Reagan
adminisraion has ye o be able o gain a majoriy suppor in he US Senae or he US House o
Represenaives or among he American people over he pas 11 years So ailing he abiliy o do ha boh
Presidens have concluded and did conclude ha he avenue o ha change was o remake he Cour
In describing how he reacors o differen orces and acions have brough abou he difficuly we now
have o ace I do no wan anybody o lose sigh o he ac ha i is he adminisraionrsquos nominaion
agenda ha is he roo cause o his dilemma Tha is i you will he original sin which has creaed all o
he problems ha plague he process oday The adminisraionrsquos desire o placae he righwing o is
pary which is driven by a single issue--overurning Roe versus Wade
To he members o his Republican acion no mere conservaive such as Jusice OrsquoConnor or Jusice
Powell is sae o use he word hey ofen use The adminisraion has urged us o reach or a Scalia
a Bork a Thomas Bu i his is he original sin behind odayrsquos woes i is no he only cause o he
confirmaion deadlock And here are hree consequences o he Reagan-Bush nominaion sraegy ha
have conribued o he problem
Firs Democras and moderae Republicans have placed i ino he hands o he Republican righ by
acceping Roe as he divining rod in reverse making a nomineersquos views or reusal o sae his views on
his quesion he overriding concern in he confirmaion process
Ye in enjoying he righ o permi he single issue o dominae he debae he cener and he lef
have los sigh o he ac ha nominees are chosen by Republicans ulraconservaives They end o
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BIDEN RULES
embrace oher consiuional and jurisprudenial views unrelaed o aborion bu equally a he ar end
o he specrum
To pu i anoher way he cener and he lef which won such broad public suppor or he posiion
agains Judge Borkrsquos nominaion have allowed hemselves o be divided as single-issue paricipans
This has given rise o even more rusraion abou he process rom boh paricipans and observers and
was one cause or he schism ha emerged in he Thomas confirmaion debae Moreover he ocus on
Roe prevens he commitee rom exploring many legiimae issues in our hearing because quesions
abou he nominees on many maters rom he cuting-edge issue o he righ o privacy o he age-old
legal docrine o sare decisis are immediaely assumed by all hose who observed he process o be
cover quesions abou aborion when hey have nohing o do wih aborion
Among he mos rusraing aspecs o he Souer and Thomas hearings was ha when I ried o quesion
he nominees on wheher hey hough individuals had a righ o privacy everyone--he press he public
he nominees my colleagues--hough ha I was rying o ask abou aborion in disguise no mater how
many imes I said ruhully and rankly and I quoe
No orge abou aborion To know how you will ace he many unknown quesions ha will conron he
Cour ino he 21s cenury I mus know wheher or no you hink individuals have a righ o privacy
No mater how many imes I insised everyone believed I was asking abou aborion Tha is jus how
powerully he issue dominaes our process
(Mr KOHL assumed he chair)
Mr BIDEN Second in he period beween he Bork and he Thomas nominaions here developed wha
could be called an uninended conspiracy o exremismrsquo beween he righ and he lef o underminehe confirmaion process and quesion he legiimacy o is oucomes
Simply pu he righ could no accep ha any process which resuled in he rejecion o Judge Bork
was air or legiimae Nowihsanding he conemporaneous declaraion o may Republican Senaors
ha he hearings and process or handling he Bork nominaion were air a subsequen myhology has
developed ha claims oherwise
We are old ha he hearings were iled agains Bork bu here were more winesses who esified or
him han appeared in opposiion I have heard his deea blamed on scheduling o he winesses Well
we simply alernaed pro-con pro-con panel afer panel
And he lis o excuses goes on and on I was he camera angle hey said he beard he lighs he
iming--all unair all engaged in by hose who opposed Bork o bring him down
In sum he conservaive wing o he Republican Pary has never acceped he cold hard ac ha he
Senae rejeced Judge Bork because his views came o be well undersood and were considered
unaccepable And because his rejecion o heir core philosophy is inconceivable o he legal righ
hey have been on a hun or villains ever since
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BIDEN RULES
They have atacked he press as in a recen inemperae speech by a conservaive Federal judge
bashing wo New York Times reporers who are among he fines o cover Supreme Cour hearings Bu
mos o all hese movemen conservaives have atacked he confirmaion process isel and he Senae
or exercising is consiuional duies o conduc i
Bu i does no sop here Mr Presiden
A he same ime he lef oo has clohed is rusraion wih is inabiliy o persuade he American public
o he wisdom o is agenda in anger abou he confirmaion process as well
The lef has reused o accep he ac ha when one poliical branch is conrolled by a conservaive
Republican and he oher has is philosophical ulcrum resing on key Souhern Democras who
hold he balance on close voes in he Senae i is ineviable ha he Cour is going o grow more
conservaive Accepable candidaes mus be ound among hose who sraddle his ideological gul
such as Jusices Kennedy and Souer who were approved by a combined oal o 188 o 9 in he Senae
The lef Mr Presiden is rusraed because a conservaive Presiden and a Senae where he ulcrum isheld by conservaive Souhern Democras is no going o nominae a Jusice Brennan who I hink was
a grea Jusice and we should find people o replace him ideologically They reuse o accep realiy Mr
Presiden jus as he righ reuses o accep he realiy o a Bork deea
Bork was deeaed because his views o wha he hough America should become were differen han
hose held by he vas majoriy o Americans and an overwhelming majoriy o Senaors and had no a
whi o do wih wheher or no he had a beard a camera angle an ad by an ouside group or he order
o winesses
So Mr Presiden he confirmaion process has hus become a convenien scapegoa or ideological
advocaes o compeing social visions--advocaes who have no been able o persuade he generally
moderae American public o he wisdom o eiher o eiher o heir views when ramed in he exreme
In effec hen Mr Presiden hese advocaes have joined in an ad hoc alliance he exreme righ and
he exreme lef o undermine public confidence in a process aimed a moderaion--hoping perhaps o
omen a grea social and culural war in which one or he oher will prevail
The hird problem Mr Presiden is he confirmaion process has been ineced by he general meanness
and nasiness ha pervades our poliical process oday While I believe hey played litle or no role in
he oucome he inaccurae elevision ads ha were run agains Judge Borkrsquos confirmaion only auned
increasingly cuting responses rom he righ
The Thomas nominaion included a level o personal biterness ha may be ypical o our modern
poliical campaigns bu is desrucive o any process dependen upon consensus as is he confirmaion
process Afer he nominaion was announced one o he opponens o Judge Thomas ouside he
Senae hreaened o Bork himrsquo--a menacing pledge ha served no purpose And hen as he hearings
were abou o begin he same conservaive group ha produced he inamous Willie Horon ads ran
elevision commercials atacking members o he Judiciary Commitee including mysel wih he inen
o inimidae--and hey so saed--inimidae our review o he nominaion
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I find i ironic Mr Presiden ha we could recognize he cos--i no find he answers--or his nasiness in
he conex o Presidenial elecions bu lack he same insigh wih respec o he confirmaion process
Many o he same voices who have criicized he commitee or no going hard enough afer allegaions
ha Judge Thomas had improper ravel expenses spieully ranserred a whisleblower a EEOC or
was riends wih a proaparheid lobbyis--many o hese criics o our commitee are among he firs obemoan he ac ha he Presidenial campaign o 1992 has been dominaed by quesions o personal
wrong-doing insead o he real issues
We canno have i boh ways
I oo believe ha he Naion would be beter off i he curren campaign was cenered on dispues over
public policy raher han gossip abou marial fideliy and marijuana use Bu I mus say ha he same
is rue abou our review o Supreme Cour nominees he Naion is enriched when we explore heir
jurisprudenial views i is debased when we plow hrough heir privae lives or dir
As wih Presidenial campaigns he press--perhaps because i is easier perhaps because i sells papers--has oo ofen ocused heir coverage o Supreme Cour nominees on such gossip and personal maters
raher han on he subsanial--bu difficul--ask o rying o discern heir philosophy and heir ideology
because i is heir philosophy and heir ideology ha will affec how I am able o live my lie how my
children will be able o live heir lives no wheher or no when hey were 17 years old hey smoked
marijuana or anyhing else
Le me make i clear here ha I am no now speaking o Proessor Hillrsquos allegaions agains Judge
Thomas which were cerainly serious and significan enough o meri he ull invesigaion ha he
commitee conduced boh beore and afer heir public disclosure Raher I am speaking o he
numerous lesser allegaions agains nominees Bork Kennedy Souer and Thomas which he mosexreme commitee criics say we have done oo litle o pursue
Some examples o wha hese criics waned o see us delve ino come o mind Judge Bork had his
video renal records exhumed and sudied or possible renal o pornographic films Judge Souer has
his marial saus quesioned and el obligaed o produce ex-girlriends o esiy o his viriliy Judge
Thomas was assauled by a whispering campaign ha spread unsubsaniaed rumors o abou he
cause o he end o his firs marriage
Each ime he airing o hese charges enraged Republican allies o hese nominees who considered
he charges unair and a violaion o heir righ o privacy And each ime when he commitee--a my
direcion--reused o explore hese awdry rumors he more exreme criics o our process grew more
and more rusraed wih he resuls
This was anoher ension which came o a head during he Thomas nominaion and which exploded
when Proessor Hillrsquos charges were made public
To sum up hen The confirmaion process launched in 1987--an atemp o provide a means or dealing
wih he Reagan-Bush campaign o ransorm he Supreme Cour ideologically a a ime when hose
ideological views lacked public suppor--has been orn asunder The process lacks he sor o broad-
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based suppor ha could make i work and is credibiliy has been slowly eroded by he criicism i has
received rom boh liberal and conservaive ideologues
A legiimae process ha was buil in good aih o ideniy and confirm consensus nominees has been
desroyed by many o he same corrosive influences ha have so devasaed our Presidenial poliics
and our naional dialog on public affairs
Consequenly i is my view ha--paricularly i he realiy o divided governmen during a ime o grea
change a he Cour coninues in he nex adminisraion--uure confirmaions mus be conduced
differenly han he preceding ones The pressures and ensions on he exising process--which
exploded during he Thomas nominaion figh--make a resoraion o wha came beore Judge Thomasrsquo
nominaion--even i i was desirable--a pracical impossibiliy
THE UNIQUE HISTORY OF ELECTION YEAR NOMINATIONS
Having said ha we ace one immediae quesion Can our Supreme Cour nominaion and confirmaion
processes so racked by discord and biterness be repaired in a Presidenial elecion year Hisoryeaches us ha his is exremely unlikely
Some o our Naionrsquos mos biter and heaed confirmaion fighs have come in Presidenial elecion years
The bruising confirmaion figh over Roger Taneyrsquos nominaion in 1836 he Senaersquos reusal o confirm
our nominaions by Presiden Tyler in 1844 he single voe rejecions o nominees Badger and Black
by lameduck Presidens Fillmore and Buchanan in he mid-19h cenury and he narrow approvals o
Jusices Lamar and Fuller in 1888 are jus some examples o hese fighs in he 19h cenury
Overall while only one in our Supreme Cour nominaions has been he subjec o significan
opposiion he figure rises o one ou o wo when such nominaions are aced on in Presidenial
elecion years
In our own cenury here are wo paricularly poignan cases The 1916 confirmaion figh over Louis
D Brandeis one o Americarsquos grea juriss--a figh filled wih mean-spiried ani-Semiic atacks on he
nominee--is an example o how elecion year poliics can pollue Senae consideraion o a disinguished
candidae And he 1968 filibuser agains Abe Forasrsquo nominaion--an assaul ha was launched by 19
Republican Senaors beore Presiden Johnson had even named Foras as his selecion--is similarly well
known by all who ollow his
Indeed many pundis on boh he lef and he righ quesioned our commiteersquos abiliy o airly process
he Bork nominaion--a year beore he 1988 campaign--wihou becoming enangled in Presidenialpoliics While I believe his concern was misplaced and ulimaely disproved i illusraes how ears o
such poliicizaion can undermine confidence in he confirmaion process
Moreover he radiion agains acing on Supreme Cour nominaions in a Presidenial year is paricularly
srong when he vacancy occurs in he summer or all o ha elecion season
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BIDEN RULES
Thus while a ew Jusices have been confirmed in he summer or all o a Presidenial elecion season
such confirmaions are rare--only five imes in our hisory have summer or all confirmaions been
graned wih he laes--he laes--being he Augus 1846 confirmaion o Jusice Rober Grier
In ac no Jusice has ever been confirmed in Sepember or Ocober o an elecion year--he sor o iming
which has become sandard in he modern confirmaion process Indeed in American hisory he onlyatemp o push hrough a Sepember or Ocober confirmaion was he ailed campaign o approve Abe
Forasrsquo nominaion in 1968 I canno believe anyone would wan o repea ha experience in odayrsquos climae
Moreover o he five Jusices who were confirmed in he summer o an elecion year all five were
nominaed or vacancies ha had arisen beore he summer began Indeed Jusice Grierrsquos Augus
confirmaion was or a vacancy on he Cour ha was more han 2 years old as was he July confirmaion
o Jusice Samuel Miller in 1862
Thus more relevan or he siuaion we could be acing in 1922 is his saisic six Supreme Cour
vacancies have occurred in he summer or all o a Presidenial elecion year and never--no once--has
he Senae confirmed a nominee or hese vacancies beore he November elecion
In our o hese six cases--in 1800 1828 1864 and 1956--he Presiden himsel wihheld making a
nominaion unil afer he elecion was held
In boh o he wo insances where he Presiden did insis on naming a nominee under hese circumsances
Edward Bradord in 1952 and Abe Foras in 1968 he Senae reused o confirm hese selecions
Thus as we ener he summer o he Presidenial elecion year i is ime o consider wheher his
unbroken sring o hisorical radiion should be broken In my view wha hisory suppors common
sense dicaes in he case o 1992 Given he unusual rancor ha prevailed in he Thomas nominaion he
need or some serious reevaluaion o he nominaion and confirmaion process and he overall level o
biterness ha sadly inecs our poliical sysem and his Presidenial campaign already i is my view ha
he prospecs or anyhing bu conflagraion wih respec o a Supreme Cour nominaion his year are
remoe a bes
O Presidens Reaganrsquos and Bushrsquos las seven selecions o he Cour wo were no confirmed and wo
more were approved wih he mos voes cas agains hem in he hisory o he Unied Saes o America
We have seen how Mr Presiden in my view poliics has played ar oo large a role in he Reagan-Bush
nominaions o dae One can only imagine ha role becoming overarching i a choice were made his
year assuming a Jusice announced omorrow ha he or she was sepping down
Should a Jusice resign his summer and he Presiden move o name a successor acions ha will occur
jus days beore he Democraic Presidenial Convenion and weeks beore he Republican Convenion
mees a process ha is already in doub in he minds o many will become disrused by all Senae
consideraion o a nominee under hese circumsances is no air o he Presiden o he nominee or o
he Senae isel
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BIDEN RULES
Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i
will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom
boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns
omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should
consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil
afer he November elecion is compleed
The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy
ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way
o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary
Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer
he poliical campaign season is over
I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns
we will have seen in modern imes
I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i
was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be
permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in
he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic
conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion
mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral
o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion
Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as
I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he
Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and
he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is
nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks
In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain
Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise
beween he branches would no be sofened bu raher he prospecs or such compromise would be
naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process
migh be changed in he nex adminisraion wheher i is a Democra or a Republican
I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive
social agenda ha he Congress and he public have rejeced In his way all he paricipans in he
process can be clear well in advance o how I inend o approach any uure nominaions
Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he
nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o
be chairman in he nex adminisraion
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BIDEN RULES
I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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BIDEN RULES
Top Highlights
Length Of Remarks ndash 21 pages ~11040 words
RULE There Is A ldquoParicularly Srongrdquo Senae ldquoTradiionAgains Acing On Supreme Cour Nominaions In A
Presidenial Yearrdquo
ldquoThe radiion agains acing on Supreme Cour nominaions in a
Presidenial year is paricularly srongrdquo
RULE Presidens Should No Pu Forh A Supreme Cour
Nominaion Unil Afer November During An Elecion Year
ldquoMr Presiden where he Naion should be reaed o a consideraion o
consiuional philosophy all i will ge in such circumsances is parisan
bickering and poliical posuring rom boh paries and rom boh ends o
Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour
Jusice resigns omorrow or wihin he nex several weeks or resigns
a he end o he summer Presiden Bush should consider ollowinghe pracice o a majoriy o his predecessors and no--and no--name a
nominee unil afer he November elecion is compleedrdquo
RULE Any Issues Leaving The Supreme Cour Wih Only 8
Jusices Are Simply ldquoQuie Minorrdquo
ldquoOhers may re ha his approach would leave he Cour wih only eigh
members or some ime bu as I see i Mr Presiden he cos o such a
resul he need o reargue hree or our cases ha will divide he Jusices
our o our are quie minor compared o he cos ha a nominee he
Presiden he Senae and he Naion would have o pay or wha would
assuredly be a biter figh no mater how good a person is nominaed by he
Presiden i ha nominaion were o ake place in he nex several weeksrdquo
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BIDEN RULES
RULE Should A Divided Governmen Exis A Republican
Senae Is ldquoToally Eniledrdquo To Rejec The Nominee O A
Democra Presiden Who Is ldquoAtemping To Remake The Cour
In A Way Wih Which [A Republican Senae Would] Disagreerdquo
ldquoIn a divided Governmen he mus seek he advice o he Republican
Senae and compromise Oherwise his Republican Senae would be
oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagreerdquo
RULE The Consiuion Designed Voing On A Supreme
Cour Nominee To Be A ldquoPoliical Choice Abou Values And
Philosophyrdquo No A ldquoNeural Rulingrdquo
ldquoSenaors are no judges We are Senaors Our decision on a nominee
is no a neural ruling as a judge would render I is as he Consiuion
designed i a poliical choice abou values and philosophyrdquo
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BIDEN RULES
REFORM OF THE CONFIRMATION PROCESS (Senate - June 25 1992)
Mr BIDEN Mr Presiden I would like o apologize in advance or respassing on he Presidenrsquos ime and
he ime o he Senae In my over 19 years in he Senae I have never sough o speak beore he Senae
or as long a period as I sough oday in morning business
Bu he subjec o which I speak is somehing ha I have given a grea deal o hough been asked by he
Senae o spend some considerable ime hinking abou and i is exremely conroversial And in ligh o
he ac ha we are wihin a day o he ime ha hisorically he Supreme Cour Jusices make judgmens
abou wheher or no hey are going o say on or anoher year i seems somewha propiious alhough
I know o no Jusice who inends o resign--I do no mean o imply ha--my speech his morning is
abou reorming he confirmaion process and he need or a new dawn wih regard o how we conduc
ourselves relaive o he confirmaion process involving Supreme Cour nominees
Seven years ago Harvard law proessor Laurence Tribe refleced on wha was hen he second-oldes
Supreme Cour in hisory and he wroe
A grea Supreme Cour is a sor o Halleyrsquos Come in our consiuional universe a rare operaion arriving
once each lieime burning inensely in our legal firmamen or a brie period beore reurning o he
deep space o consiuional hisory
He added ha a quie period in which here were jus wo Supreme Cour nominaions in 15 years
was he calm beore he consiuional sorm ha surely lies aheadrsquo predicing ha someime in his
decade we will be ossed ino he urbulen process ha has gripped his Naion in he pas And
oday afer he naming o seven men o fill five vacancies on he Supreme Cour in jus 5 years we find
ourselves in he mids o he sorm Proessor Tribe orecass
In hese pas 5 years he US Senae has endured hree o he mos conenious confirmaion fighs in
he hisory o he Unied Saes
The 1986 nominaion o William Rehnquis who was confirmed by he mos voes cas agains him o any
judge o he Supreme Cour in our hisory up o ha poin
The 1987 rejecion o Rober Bork a he end o an epic conflic beween compeing consiuional visions
The subsequen wihdrawal o Douglas Ginsburg jus days afer Presiden Reagan had seleced him o
succeed Bork as his nominee
The fierce fligh in 1991 which none o us I suspec will ever orge over Clarence Thomasrsquo confirmaion
o he Cour which broke Chie Jusice Rehnquisrsquos record or receiving he mos negaive voes in
Senae hisory
The immediae produc o hese conflics he change in he Cour over he pas ew years has already
been dramaic Bu as Duke proessor Waler Dellinger poined ou here is every reason o believe
we may see as many as five more Jusices reire wihin he nex 4 years In all likelihood Mr Presiden
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4
BIDEN RULES
we sand a only he halway poin in he remaking o he Supreme Cour wih as many confirmaion
conroversies in he coming Presidenial erm as we saw over he pas wo erms combined
By he ime we arrive a he nex elecion year in 1996 here is a subsanial chance ha no member
o he Cour who was serving on he Cour in June o 1986 will remain on he bench Such a complee
replacemen o he Cour in jus 10 years has only one preceden since he Cour was permanenlyexpanded o nine members over 100 years ago Today as we sand a he midpoin in his dramaic
change I would like o discuss wha has ranspired over he pas ew years wih respec o he
confirmaion process
Mr Presiden I also wan o discuss he quesion o wha should be done i a Supreme Cour vacancy
occurs his summer Finally I wan o offer our general proposals or how I believe he nominaion and
confirmaion process should be changed or uure nominaions
Le me sar firs wih a consideraion o he confirmaion process o he pas decade As I menioned
earlier Presidens Reagan and Bush have named eigh nominees or six posiions on he Cour during
heir Presidenial erms This is no he firs ime in our hisory ha a srong ideological Presiden and his
loyal successor have combined o shape he Cour
Presidens Washingon and Adams made 18 nominaions o which 14 were confirmed and served
among he Courrsquos 6 Jusices
Presidens Lincoln and Gran nominaed 13 candidaes or he Cour o whom 9 were confirmed
and served
Presidens Roosevel and Truman named 13 Jusices all confirmed in heir combined erms in he
Whie House
Wha disinguished he Reagan-Bush Jusices rom hese hisorical parallels however is ha hal o
hem have been nominaed in a period o a divided Governmen In each o hese previous imes a
sweeping naionwide consensus exised as refleced by he elecion o boh poliical branches o like-
minded officials which jusified he sweeping changes ha ook place a he Supreme Cour
Bu over he pas wo decades Mr Presiden no such consensus has exised unlike he eras o which I
poined--Washingon-Adams Lincoln-Gran Roosevel-Truman
Since 1968 Republicans have conrolled he Whie House or 20 o 24 years Democras have conrolled
he Senae or 18 years o his period The public has no given eiher pary a mandae o remake heCour ino a body reflecive o a srong vision o our respecive philosophies and boh o our paries
should finally honesly admi o ha ac Boh o our paries should honesly have conceded his ac
Bu neiher has hus ar
O course his is no he firs period when a divided Governmen has been required o fill he hird branch
o Governmen Abou one-fifh o all Supreme Cour Jusices have been confirmed by a pary differen
rom he Presiden One-hird o all Jusices confirmed since 1930 have been approved under
hese circumsances
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BIDEN RULES
I was a Senae conrolled by progressive Republicans and Democras ha confirmed hree o Presiden
Hooverrsquos our nominees or he Cour and a Democraic Senae reviewed and approved Eisenhower
nominees Ye in hese previous periods o divided Governmen Mr Presiden indeed in some
periods where a Presiden and he Senae shared he same pary Presidens commonly have aken
he Consiuion a is word and asked or he Senaersquos advice--advice--as well as is consen These
Presidens have consuled wih he Senae abou heir choices or he Cour andor chose nominees
wih balanced or diverse ideologies Thus he conservaive Republican Hoover named conservaive
Chie Jusice Charles Evan Hughes bu also named a moderae Owen Robers and a liberal Benjamin
Cardoza he later Benjamin Cardoza afer heaed execuive-Senae consulaions
Similarly Presiden Eisenhowerrsquos choices or he Cour included conservaive John Harlan and Charles
Whitaker moderae Poter Sewar and liberals Earl Warren and William Brennan Even Presiden Nixon
who showed no relucance o ake ull advanage o Presidenial prerogaives balanced his choices o
conservaives Warren Burger and William Rehnquis wih hose o moderae Republican Harry Blackmun
and conservaive Democra Lewis Powell
This o course has no been he model ha Presidens Reagan and Bush have ollowed Indeed even
lacking he broad suppor or heir vision o he Cour which Presidens Washingon and Adams Lincoln
and Gran and Roosevel and Truman had Presidens Reagan and Bush have ried o recas he Cour in
heir ideological image as hese Presidens did
Pu anoher way This is no he firs ime ha a andem o Presidens have sough o remake he Supreme
Cour nor is i he firs ime ha divided Governmen has had o fill a number o seas in ha body
Bu i is he firs ime ha boh have been atemped simulaneously and ha more han anyhing else
has been a he roo o he curren conroversy surrounding he selecion o he Supreme Cour Jusices
I was o cope wih his sress a sress creaed by he decision o Presidens Reagan and Bush o atemp
o move he Cour ideologically ino a radical new direcion which his counry does no suppor i was
o cope wih his sress ha he modern confirmaion process was creaed And on his poin here
should be no doub and no uncerainy
The use ha Presidens Reagan and Bush made o he Supreme Cour nominaing process in a period
o divided Governmen is wihou parallel in our Naionrsquos hisory I is his power grab ha has unleashed
he powerul and diverse orces ha have ravaged he confirmaion process I he American people are
dissaisfied wih where hey find he process oday hey mus undersand where he discord ha has
come o characerize i began Wih Presidens Reagan and Bush and heir decision o cede power in henominaing process o he radical ligh wihin heir own adminisraion
I was in he ace o his unprecedened challenge o he Supreme Courrsquos selecion process ha we in
he Senae developed an unprecedened confirmaion process The cenerpiece o his new process was
a rank recogniion o he legiimacy o Senae consideraion o a nomineersquos judicial philosophy as par o
he confirmaion review
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BIDEN RULES
I ask unanimous consen a his poin ha a previous speech I have made on he Senaersquos righ o look a
and obligaion o look a he ideology o he nominees be prined in he Record
[removed previous esimony insered ino he record]
Mr BIDEN Mr Presiden a he ime I firs se orh his noion during he Bork confirmaion debae i was
a widely conroversial noion ha is ha we as well as he Presiden had a righ o look a ideology Ye
scholarly works reaffirmed by he recen aricles o Pro David Srauss and Cass Sunsein have always
ound a solid basis or his view in he inenions o our Framers and in he hisory o our Naion
In my view he debae over he Senaersquos review o ideology has been ruiul We have quashed he myh
ha he Senae mus deer o a Presidenrsquos choice o a Supreme Cour Jusice he men and women a he
apex o he independen hird branch o Governmen As he Senae properly does or nominees in he
execuive branch he role o he Senae as a vial parner in reviewing Supreme Cour nominaions has
been enhanced And he debae over his role caused even hose who were iniially skepical like Pro
Henry Monaghan who oulined he grounds or his conversion in a 1988 aricle in he Harvard Law Review
o join in he broad consensus over he propriey o more acive Senae paricipaion in he process
More undamenally Mr Presiden he serious and proound debae ha he Bork nominaion sparked
was among he mos imporan naional discussions abou our Consiuion is meaning and he
direcion o our Supreme Cour in his cenury
Beore he Bork confirmaion figh he legacy o he Warren cour was seen as enuous by scholars and
was ill suppored by he public The legal righ hough ha judicial acivism was a rallying cry ha would
move America agains he Courrsquos projecion o proecion o personal reedoms is one personone voe
docrine and oher progressive decisions ha he legal righ hough had no popular suppor and less
legal oundaion
And he legal lef prior o he Bork figh eared ha he righ migh be correc in is assessmen o
popular opinion ha is ha he warren cour and is major decisions were no popularly suppored Bu
he public reacion o Judge Borkrsquos views is rejecion o he righrsquos legal philosophy and judicial noions
proved jus he opposie
And while some aspecs o he Warren Cour decisions remain under assaul paricularly in he area o
criminal law ohers have been irrevocably secured in he hears and minds o mos Americans such as
he Courrsquos recogniion o he righ o privacy a righ ha i you recall Mr Presiden prior o he Bork
figh he ideological righ in his counry hough was no suppored by Americans
This could no have been said beore he Bork confirmaion figh And ye i can be saely proclaimed
oday ha Americans--Americans--srongly suppor he righ o privacy and find ha here is such a
righ proeced in he Consiuion Nor do I limi he success o his process o he Bork rejecion only I
am equally saisfied albei or differen reasons as o how he process uncioned in approving Jusices
Kennedy and Souer
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BIDEN RULES
As I said when I suppored heir confirmaions neiher man is one whom I would have chosen had I been
Presiden Bu each reflecs a balanced selecion a nonideological conservaive ha sands beween he
Whie House philosophy and he Senae
I migh jus noe parenheically in he decision yeserday on school prayer or prayer beore
convocaions in public schools Jusices Souer and Kennedy ook a posiion diamerically opposed oha ha has been proffered by his adminisraion and he previous one or he pas 11 years
While I have disagreed wih some o he decisions by each o hese wo Juriss I know ha Presiden
Bush mus say he same hing Tha he disagrees wih some o he decisions o he wo men Kennedy
and Souer Bu I offer hem as examples Mr Presiden ha boh men have issued some opinions ha
I sharply rejec Bu in a period o divided Governmen boh rom he Cour o compromise candidaes
who are appropriae or consideraion and whose confirmaions I suppored
In my view he conemporary confirmaion process uncioned well in rejecing Judge Bork and in
approving Jusices Kennedy and Souer And ye sadly even in so succeeding one could see wihin he
process he seeds o an explosion ha was o come wih he Thomas nominaion and he desrucive
orces ha were going o ear i apar
As I said earlier he roo o he curren collapse o he confirmaion process is he adminisraionrsquos
campaign o make he Supreme Cour an agen o an ulrarigh conservaive social agenda which lacks
suppor in he Congress and in he counry
I would jus poin ou again parenheically Mr Presiden ha he enire social agenda o he Reagan
adminisraion has ye o be able o gain a majoriy suppor in he US Senae or he US House o
Represenaives or among he American people over he pas 11 years So ailing he abiliy o do ha boh
Presidens have concluded and did conclude ha he avenue o ha change was o remake he Cour
In describing how he reacors o differen orces and acions have brough abou he difficuly we now
have o ace I do no wan anybody o lose sigh o he ac ha i is he adminisraionrsquos nominaion
agenda ha is he roo cause o his dilemma Tha is i you will he original sin which has creaed all o
he problems ha plague he process oday The adminisraionrsquos desire o placae he righwing o is
pary which is driven by a single issue--overurning Roe versus Wade
To he members o his Republican acion no mere conservaive such as Jusice OrsquoConnor or Jusice
Powell is sae o use he word hey ofen use The adminisraion has urged us o reach or a Scalia
a Bork a Thomas Bu i his is he original sin behind odayrsquos woes i is no he only cause o he
confirmaion deadlock And here are hree consequences o he Reagan-Bush nominaion sraegy ha
have conribued o he problem
Firs Democras and moderae Republicans have placed i ino he hands o he Republican righ by
acceping Roe as he divining rod in reverse making a nomineersquos views or reusal o sae his views on
his quesion he overriding concern in he confirmaion process
Ye in enjoying he righ o permi he single issue o dominae he debae he cener and he lef
have los sigh o he ac ha nominees are chosen by Republicans ulraconservaives They end o
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BIDEN RULES
embrace oher consiuional and jurisprudenial views unrelaed o aborion bu equally a he ar end
o he specrum
To pu i anoher way he cener and he lef which won such broad public suppor or he posiion
agains Judge Borkrsquos nominaion have allowed hemselves o be divided as single-issue paricipans
This has given rise o even more rusraion abou he process rom boh paricipans and observers and
was one cause or he schism ha emerged in he Thomas confirmaion debae Moreover he ocus on
Roe prevens he commitee rom exploring many legiimae issues in our hearing because quesions
abou he nominees on many maters rom he cuting-edge issue o he righ o privacy o he age-old
legal docrine o sare decisis are immediaely assumed by all hose who observed he process o be
cover quesions abou aborion when hey have nohing o do wih aborion
Among he mos rusraing aspecs o he Souer and Thomas hearings was ha when I ried o quesion
he nominees on wheher hey hough individuals had a righ o privacy everyone--he press he public
he nominees my colleagues--hough ha I was rying o ask abou aborion in disguise no mater how
many imes I said ruhully and rankly and I quoe
No orge abou aborion To know how you will ace he many unknown quesions ha will conron he
Cour ino he 21s cenury I mus know wheher or no you hink individuals have a righ o privacy
No mater how many imes I insised everyone believed I was asking abou aborion Tha is jus how
powerully he issue dominaes our process
(Mr KOHL assumed he chair)
Mr BIDEN Second in he period beween he Bork and he Thomas nominaions here developed wha
could be called an uninended conspiracy o exremismrsquo beween he righ and he lef o underminehe confirmaion process and quesion he legiimacy o is oucomes
Simply pu he righ could no accep ha any process which resuled in he rejecion o Judge Bork
was air or legiimae Nowihsanding he conemporaneous declaraion o may Republican Senaors
ha he hearings and process or handling he Bork nominaion were air a subsequen myhology has
developed ha claims oherwise
We are old ha he hearings were iled agains Bork bu here were more winesses who esified or
him han appeared in opposiion I have heard his deea blamed on scheduling o he winesses Well
we simply alernaed pro-con pro-con panel afer panel
And he lis o excuses goes on and on I was he camera angle hey said he beard he lighs he
iming--all unair all engaged in by hose who opposed Bork o bring him down
In sum he conservaive wing o he Republican Pary has never acceped he cold hard ac ha he
Senae rejeced Judge Bork because his views came o be well undersood and were considered
unaccepable And because his rejecion o heir core philosophy is inconceivable o he legal righ
hey have been on a hun or villains ever since
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BIDEN RULES
They have atacked he press as in a recen inemperae speech by a conservaive Federal judge
bashing wo New York Times reporers who are among he fines o cover Supreme Cour hearings Bu
mos o all hese movemen conservaives have atacked he confirmaion process isel and he Senae
or exercising is consiuional duies o conduc i
Bu i does no sop here Mr Presiden
A he same ime he lef oo has clohed is rusraion wih is inabiliy o persuade he American public
o he wisdom o is agenda in anger abou he confirmaion process as well
The lef has reused o accep he ac ha when one poliical branch is conrolled by a conservaive
Republican and he oher has is philosophical ulcrum resing on key Souhern Democras who
hold he balance on close voes in he Senae i is ineviable ha he Cour is going o grow more
conservaive Accepable candidaes mus be ound among hose who sraddle his ideological gul
such as Jusices Kennedy and Souer who were approved by a combined oal o 188 o 9 in he Senae
The lef Mr Presiden is rusraed because a conservaive Presiden and a Senae where he ulcrum isheld by conservaive Souhern Democras is no going o nominae a Jusice Brennan who I hink was
a grea Jusice and we should find people o replace him ideologically They reuse o accep realiy Mr
Presiden jus as he righ reuses o accep he realiy o a Bork deea
Bork was deeaed because his views o wha he hough America should become were differen han
hose held by he vas majoriy o Americans and an overwhelming majoriy o Senaors and had no a
whi o do wih wheher or no he had a beard a camera angle an ad by an ouside group or he order
o winesses
So Mr Presiden he confirmaion process has hus become a convenien scapegoa or ideological
advocaes o compeing social visions--advocaes who have no been able o persuade he generally
moderae American public o he wisdom o eiher o eiher o heir views when ramed in he exreme
In effec hen Mr Presiden hese advocaes have joined in an ad hoc alliance he exreme righ and
he exreme lef o undermine public confidence in a process aimed a moderaion--hoping perhaps o
omen a grea social and culural war in which one or he oher will prevail
The hird problem Mr Presiden is he confirmaion process has been ineced by he general meanness
and nasiness ha pervades our poliical process oday While I believe hey played litle or no role in
he oucome he inaccurae elevision ads ha were run agains Judge Borkrsquos confirmaion only auned
increasingly cuting responses rom he righ
The Thomas nominaion included a level o personal biterness ha may be ypical o our modern
poliical campaigns bu is desrucive o any process dependen upon consensus as is he confirmaion
process Afer he nominaion was announced one o he opponens o Judge Thomas ouside he
Senae hreaened o Bork himrsquo--a menacing pledge ha served no purpose And hen as he hearings
were abou o begin he same conservaive group ha produced he inamous Willie Horon ads ran
elevision commercials atacking members o he Judiciary Commitee including mysel wih he inen
o inimidae--and hey so saed--inimidae our review o he nominaion
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BIDEN RULES
I find i ironic Mr Presiden ha we could recognize he cos--i no find he answers--or his nasiness in
he conex o Presidenial elecions bu lack he same insigh wih respec o he confirmaion process
Many o he same voices who have criicized he commitee or no going hard enough afer allegaions
ha Judge Thomas had improper ravel expenses spieully ranserred a whisleblower a EEOC or
was riends wih a proaparheid lobbyis--many o hese criics o our commitee are among he firs obemoan he ac ha he Presidenial campaign o 1992 has been dominaed by quesions o personal
wrong-doing insead o he real issues
We canno have i boh ways
I oo believe ha he Naion would be beter off i he curren campaign was cenered on dispues over
public policy raher han gossip abou marial fideliy and marijuana use Bu I mus say ha he same
is rue abou our review o Supreme Cour nominees he Naion is enriched when we explore heir
jurisprudenial views i is debased when we plow hrough heir privae lives or dir
As wih Presidenial campaigns he press--perhaps because i is easier perhaps because i sells papers--has oo ofen ocused heir coverage o Supreme Cour nominees on such gossip and personal maters
raher han on he subsanial--bu difficul--ask o rying o discern heir philosophy and heir ideology
because i is heir philosophy and heir ideology ha will affec how I am able o live my lie how my
children will be able o live heir lives no wheher or no when hey were 17 years old hey smoked
marijuana or anyhing else
Le me make i clear here ha I am no now speaking o Proessor Hillrsquos allegaions agains Judge
Thomas which were cerainly serious and significan enough o meri he ull invesigaion ha he
commitee conduced boh beore and afer heir public disclosure Raher I am speaking o he
numerous lesser allegaions agains nominees Bork Kennedy Souer and Thomas which he mosexreme commitee criics say we have done oo litle o pursue
Some examples o wha hese criics waned o see us delve ino come o mind Judge Bork had his
video renal records exhumed and sudied or possible renal o pornographic films Judge Souer has
his marial saus quesioned and el obligaed o produce ex-girlriends o esiy o his viriliy Judge
Thomas was assauled by a whispering campaign ha spread unsubsaniaed rumors o abou he
cause o he end o his firs marriage
Each ime he airing o hese charges enraged Republican allies o hese nominees who considered
he charges unair and a violaion o heir righ o privacy And each ime when he commitee--a my
direcion--reused o explore hese awdry rumors he more exreme criics o our process grew more
and more rusraed wih he resuls
This was anoher ension which came o a head during he Thomas nominaion and which exploded
when Proessor Hillrsquos charges were made public
To sum up hen The confirmaion process launched in 1987--an atemp o provide a means or dealing
wih he Reagan-Bush campaign o ransorm he Supreme Cour ideologically a a ime when hose
ideological views lacked public suppor--has been orn asunder The process lacks he sor o broad-
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BIDEN RULES
based suppor ha could make i work and is credibiliy has been slowly eroded by he criicism i has
received rom boh liberal and conservaive ideologues
A legiimae process ha was buil in good aih o ideniy and confirm consensus nominees has been
desroyed by many o he same corrosive influences ha have so devasaed our Presidenial poliics
and our naional dialog on public affairs
Consequenly i is my view ha--paricularly i he realiy o divided governmen during a ime o grea
change a he Cour coninues in he nex adminisraion--uure confirmaions mus be conduced
differenly han he preceding ones The pressures and ensions on he exising process--which
exploded during he Thomas nominaion figh--make a resoraion o wha came beore Judge Thomasrsquo
nominaion--even i i was desirable--a pracical impossibiliy
THE UNIQUE HISTORY OF ELECTION YEAR NOMINATIONS
Having said ha we ace one immediae quesion Can our Supreme Cour nominaion and confirmaion
processes so racked by discord and biterness be repaired in a Presidenial elecion year Hisoryeaches us ha his is exremely unlikely
Some o our Naionrsquos mos biter and heaed confirmaion fighs have come in Presidenial elecion years
The bruising confirmaion figh over Roger Taneyrsquos nominaion in 1836 he Senaersquos reusal o confirm
our nominaions by Presiden Tyler in 1844 he single voe rejecions o nominees Badger and Black
by lameduck Presidens Fillmore and Buchanan in he mid-19h cenury and he narrow approvals o
Jusices Lamar and Fuller in 1888 are jus some examples o hese fighs in he 19h cenury
Overall while only one in our Supreme Cour nominaions has been he subjec o significan
opposiion he figure rises o one ou o wo when such nominaions are aced on in Presidenial
elecion years
In our own cenury here are wo paricularly poignan cases The 1916 confirmaion figh over Louis
D Brandeis one o Americarsquos grea juriss--a figh filled wih mean-spiried ani-Semiic atacks on he
nominee--is an example o how elecion year poliics can pollue Senae consideraion o a disinguished
candidae And he 1968 filibuser agains Abe Forasrsquo nominaion--an assaul ha was launched by 19
Republican Senaors beore Presiden Johnson had even named Foras as his selecion--is similarly well
known by all who ollow his
Indeed many pundis on boh he lef and he righ quesioned our commiteersquos abiliy o airly process
he Bork nominaion--a year beore he 1988 campaign--wihou becoming enangled in Presidenialpoliics While I believe his concern was misplaced and ulimaely disproved i illusraes how ears o
such poliicizaion can undermine confidence in he confirmaion process
Moreover he radiion agains acing on Supreme Cour nominaions in a Presidenial year is paricularly
srong when he vacancy occurs in he summer or all o ha elecion season
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BIDEN RULES
Thus while a ew Jusices have been confirmed in he summer or all o a Presidenial elecion season
such confirmaions are rare--only five imes in our hisory have summer or all confirmaions been
graned wih he laes--he laes--being he Augus 1846 confirmaion o Jusice Rober Grier
In ac no Jusice has ever been confirmed in Sepember or Ocober o an elecion year--he sor o iming
which has become sandard in he modern confirmaion process Indeed in American hisory he onlyatemp o push hrough a Sepember or Ocober confirmaion was he ailed campaign o approve Abe
Forasrsquo nominaion in 1968 I canno believe anyone would wan o repea ha experience in odayrsquos climae
Moreover o he five Jusices who were confirmed in he summer o an elecion year all five were
nominaed or vacancies ha had arisen beore he summer began Indeed Jusice Grierrsquos Augus
confirmaion was or a vacancy on he Cour ha was more han 2 years old as was he July confirmaion
o Jusice Samuel Miller in 1862
Thus more relevan or he siuaion we could be acing in 1922 is his saisic six Supreme Cour
vacancies have occurred in he summer or all o a Presidenial elecion year and never--no once--has
he Senae confirmed a nominee or hese vacancies beore he November elecion
In our o hese six cases--in 1800 1828 1864 and 1956--he Presiden himsel wihheld making a
nominaion unil afer he elecion was held
In boh o he wo insances where he Presiden did insis on naming a nominee under hese circumsances
Edward Bradord in 1952 and Abe Foras in 1968 he Senae reused o confirm hese selecions
Thus as we ener he summer o he Presidenial elecion year i is ime o consider wheher his
unbroken sring o hisorical radiion should be broken In my view wha hisory suppors common
sense dicaes in he case o 1992 Given he unusual rancor ha prevailed in he Thomas nominaion he
need or some serious reevaluaion o he nominaion and confirmaion process and he overall level o
biterness ha sadly inecs our poliical sysem and his Presidenial campaign already i is my view ha
he prospecs or anyhing bu conflagraion wih respec o a Supreme Cour nominaion his year are
remoe a bes
O Presidens Reaganrsquos and Bushrsquos las seven selecions o he Cour wo were no confirmed and wo
more were approved wih he mos voes cas agains hem in he hisory o he Unied Saes o America
We have seen how Mr Presiden in my view poliics has played ar oo large a role in he Reagan-Bush
nominaions o dae One can only imagine ha role becoming overarching i a choice were made his
year assuming a Jusice announced omorrow ha he or she was sepping down
Should a Jusice resign his summer and he Presiden move o name a successor acions ha will occur
jus days beore he Democraic Presidenial Convenion and weeks beore he Republican Convenion
mees a process ha is already in doub in he minds o many will become disrused by all Senae
consideraion o a nominee under hese circumsances is no air o he Presiden o he nominee or o
he Senae isel
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BIDEN RULES
Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i
will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom
boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns
omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should
consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil
afer he November elecion is compleed
The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy
ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way
o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary
Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer
he poliical campaign season is over
I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns
we will have seen in modern imes
I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i
was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be
permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in
he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic
conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion
mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral
o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion
Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as
I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he
Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and
he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is
nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks
In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain
Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise
beween he branches would no be sofened bu raher he prospecs or such compromise would be
naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process
migh be changed in he nex adminisraion wheher i is a Democra or a Republican
I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive
social agenda ha he Congress and he public have rejeced In his way all he paricipans in he
process can be clear well in advance o how I inend o approach any uure nominaions
Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he
nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o
be chairman in he nex adminisraion
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BIDEN RULES
I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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BIDEN RULES
RULE Should A Divided Governmen Exis A Republican
Senae Is ldquoToally Eniledrdquo To Rejec The Nominee O A
Democra Presiden Who Is ldquoAtemping To Remake The Cour
In A Way Wih Which [A Republican Senae Would] Disagreerdquo
ldquoIn a divided Governmen he mus seek he advice o he Republican
Senae and compromise Oherwise his Republican Senae would be
oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagreerdquo
RULE The Consiuion Designed Voing On A Supreme
Cour Nominee To Be A ldquoPoliical Choice Abou Values And
Philosophyrdquo No A ldquoNeural Rulingrdquo
ldquoSenaors are no judges We are Senaors Our decision on a nominee
is no a neural ruling as a judge would render I is as he Consiuion
designed i a poliical choice abou values and philosophyrdquo
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BIDEN RULES
REFORM OF THE CONFIRMATION PROCESS (Senate - June 25 1992)
Mr BIDEN Mr Presiden I would like o apologize in advance or respassing on he Presidenrsquos ime and
he ime o he Senae In my over 19 years in he Senae I have never sough o speak beore he Senae
or as long a period as I sough oday in morning business
Bu he subjec o which I speak is somehing ha I have given a grea deal o hough been asked by he
Senae o spend some considerable ime hinking abou and i is exremely conroversial And in ligh o
he ac ha we are wihin a day o he ime ha hisorically he Supreme Cour Jusices make judgmens
abou wheher or no hey are going o say on or anoher year i seems somewha propiious alhough
I know o no Jusice who inends o resign--I do no mean o imply ha--my speech his morning is
abou reorming he confirmaion process and he need or a new dawn wih regard o how we conduc
ourselves relaive o he confirmaion process involving Supreme Cour nominees
Seven years ago Harvard law proessor Laurence Tribe refleced on wha was hen he second-oldes
Supreme Cour in hisory and he wroe
A grea Supreme Cour is a sor o Halleyrsquos Come in our consiuional universe a rare operaion arriving
once each lieime burning inensely in our legal firmamen or a brie period beore reurning o he
deep space o consiuional hisory
He added ha a quie period in which here were jus wo Supreme Cour nominaions in 15 years
was he calm beore he consiuional sorm ha surely lies aheadrsquo predicing ha someime in his
decade we will be ossed ino he urbulen process ha has gripped his Naion in he pas And
oday afer he naming o seven men o fill five vacancies on he Supreme Cour in jus 5 years we find
ourselves in he mids o he sorm Proessor Tribe orecass
In hese pas 5 years he US Senae has endured hree o he mos conenious confirmaion fighs in
he hisory o he Unied Saes
The 1986 nominaion o William Rehnquis who was confirmed by he mos voes cas agains him o any
judge o he Supreme Cour in our hisory up o ha poin
The 1987 rejecion o Rober Bork a he end o an epic conflic beween compeing consiuional visions
The subsequen wihdrawal o Douglas Ginsburg jus days afer Presiden Reagan had seleced him o
succeed Bork as his nominee
The fierce fligh in 1991 which none o us I suspec will ever orge over Clarence Thomasrsquo confirmaion
o he Cour which broke Chie Jusice Rehnquisrsquos record or receiving he mos negaive voes in
Senae hisory
The immediae produc o hese conflics he change in he Cour over he pas ew years has already
been dramaic Bu as Duke proessor Waler Dellinger poined ou here is every reason o believe
we may see as many as five more Jusices reire wihin he nex 4 years In all likelihood Mr Presiden
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BIDEN RULES
we sand a only he halway poin in he remaking o he Supreme Cour wih as many confirmaion
conroversies in he coming Presidenial erm as we saw over he pas wo erms combined
By he ime we arrive a he nex elecion year in 1996 here is a subsanial chance ha no member
o he Cour who was serving on he Cour in June o 1986 will remain on he bench Such a complee
replacemen o he Cour in jus 10 years has only one preceden since he Cour was permanenlyexpanded o nine members over 100 years ago Today as we sand a he midpoin in his dramaic
change I would like o discuss wha has ranspired over he pas ew years wih respec o he
confirmaion process
Mr Presiden I also wan o discuss he quesion o wha should be done i a Supreme Cour vacancy
occurs his summer Finally I wan o offer our general proposals or how I believe he nominaion and
confirmaion process should be changed or uure nominaions
Le me sar firs wih a consideraion o he confirmaion process o he pas decade As I menioned
earlier Presidens Reagan and Bush have named eigh nominees or six posiions on he Cour during
heir Presidenial erms This is no he firs ime in our hisory ha a srong ideological Presiden and his
loyal successor have combined o shape he Cour
Presidens Washingon and Adams made 18 nominaions o which 14 were confirmed and served
among he Courrsquos 6 Jusices
Presidens Lincoln and Gran nominaed 13 candidaes or he Cour o whom 9 were confirmed
and served
Presidens Roosevel and Truman named 13 Jusices all confirmed in heir combined erms in he
Whie House
Wha disinguished he Reagan-Bush Jusices rom hese hisorical parallels however is ha hal o
hem have been nominaed in a period o a divided Governmen In each o hese previous imes a
sweeping naionwide consensus exised as refleced by he elecion o boh poliical branches o like-
minded officials which jusified he sweeping changes ha ook place a he Supreme Cour
Bu over he pas wo decades Mr Presiden no such consensus has exised unlike he eras o which I
poined--Washingon-Adams Lincoln-Gran Roosevel-Truman
Since 1968 Republicans have conrolled he Whie House or 20 o 24 years Democras have conrolled
he Senae or 18 years o his period The public has no given eiher pary a mandae o remake heCour ino a body reflecive o a srong vision o our respecive philosophies and boh o our paries
should finally honesly admi o ha ac Boh o our paries should honesly have conceded his ac
Bu neiher has hus ar
O course his is no he firs period when a divided Governmen has been required o fill he hird branch
o Governmen Abou one-fifh o all Supreme Cour Jusices have been confirmed by a pary differen
rom he Presiden One-hird o all Jusices confirmed since 1930 have been approved under
hese circumsances
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BIDEN RULES
I was a Senae conrolled by progressive Republicans and Democras ha confirmed hree o Presiden
Hooverrsquos our nominees or he Cour and a Democraic Senae reviewed and approved Eisenhower
nominees Ye in hese previous periods o divided Governmen Mr Presiden indeed in some
periods where a Presiden and he Senae shared he same pary Presidens commonly have aken
he Consiuion a is word and asked or he Senaersquos advice--advice--as well as is consen These
Presidens have consuled wih he Senae abou heir choices or he Cour andor chose nominees
wih balanced or diverse ideologies Thus he conservaive Republican Hoover named conservaive
Chie Jusice Charles Evan Hughes bu also named a moderae Owen Robers and a liberal Benjamin
Cardoza he later Benjamin Cardoza afer heaed execuive-Senae consulaions
Similarly Presiden Eisenhowerrsquos choices or he Cour included conservaive John Harlan and Charles
Whitaker moderae Poter Sewar and liberals Earl Warren and William Brennan Even Presiden Nixon
who showed no relucance o ake ull advanage o Presidenial prerogaives balanced his choices o
conservaives Warren Burger and William Rehnquis wih hose o moderae Republican Harry Blackmun
and conservaive Democra Lewis Powell
This o course has no been he model ha Presidens Reagan and Bush have ollowed Indeed even
lacking he broad suppor or heir vision o he Cour which Presidens Washingon and Adams Lincoln
and Gran and Roosevel and Truman had Presidens Reagan and Bush have ried o recas he Cour in
heir ideological image as hese Presidens did
Pu anoher way This is no he firs ime ha a andem o Presidens have sough o remake he Supreme
Cour nor is i he firs ime ha divided Governmen has had o fill a number o seas in ha body
Bu i is he firs ime ha boh have been atemped simulaneously and ha more han anyhing else
has been a he roo o he curren conroversy surrounding he selecion o he Supreme Cour Jusices
I was o cope wih his sress a sress creaed by he decision o Presidens Reagan and Bush o atemp
o move he Cour ideologically ino a radical new direcion which his counry does no suppor i was
o cope wih his sress ha he modern confirmaion process was creaed And on his poin here
should be no doub and no uncerainy
The use ha Presidens Reagan and Bush made o he Supreme Cour nominaing process in a period
o divided Governmen is wihou parallel in our Naionrsquos hisory I is his power grab ha has unleashed
he powerul and diverse orces ha have ravaged he confirmaion process I he American people are
dissaisfied wih where hey find he process oday hey mus undersand where he discord ha has
come o characerize i began Wih Presidens Reagan and Bush and heir decision o cede power in henominaing process o he radical ligh wihin heir own adminisraion
I was in he ace o his unprecedened challenge o he Supreme Courrsquos selecion process ha we in
he Senae developed an unprecedened confirmaion process The cenerpiece o his new process was
a rank recogniion o he legiimacy o Senae consideraion o a nomineersquos judicial philosophy as par o
he confirmaion review
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BIDEN RULES
I ask unanimous consen a his poin ha a previous speech I have made on he Senaersquos righ o look a
and obligaion o look a he ideology o he nominees be prined in he Record
[removed previous esimony insered ino he record]
Mr BIDEN Mr Presiden a he ime I firs se orh his noion during he Bork confirmaion debae i was
a widely conroversial noion ha is ha we as well as he Presiden had a righ o look a ideology Ye
scholarly works reaffirmed by he recen aricles o Pro David Srauss and Cass Sunsein have always
ound a solid basis or his view in he inenions o our Framers and in he hisory o our Naion
In my view he debae over he Senaersquos review o ideology has been ruiul We have quashed he myh
ha he Senae mus deer o a Presidenrsquos choice o a Supreme Cour Jusice he men and women a he
apex o he independen hird branch o Governmen As he Senae properly does or nominees in he
execuive branch he role o he Senae as a vial parner in reviewing Supreme Cour nominaions has
been enhanced And he debae over his role caused even hose who were iniially skepical like Pro
Henry Monaghan who oulined he grounds or his conversion in a 1988 aricle in he Harvard Law Review
o join in he broad consensus over he propriey o more acive Senae paricipaion in he process
More undamenally Mr Presiden he serious and proound debae ha he Bork nominaion sparked
was among he mos imporan naional discussions abou our Consiuion is meaning and he
direcion o our Supreme Cour in his cenury
Beore he Bork confirmaion figh he legacy o he Warren cour was seen as enuous by scholars and
was ill suppored by he public The legal righ hough ha judicial acivism was a rallying cry ha would
move America agains he Courrsquos projecion o proecion o personal reedoms is one personone voe
docrine and oher progressive decisions ha he legal righ hough had no popular suppor and less
legal oundaion
And he legal lef prior o he Bork figh eared ha he righ migh be correc in is assessmen o
popular opinion ha is ha he warren cour and is major decisions were no popularly suppored Bu
he public reacion o Judge Borkrsquos views is rejecion o he righrsquos legal philosophy and judicial noions
proved jus he opposie
And while some aspecs o he Warren Cour decisions remain under assaul paricularly in he area o
criminal law ohers have been irrevocably secured in he hears and minds o mos Americans such as
he Courrsquos recogniion o he righ o privacy a righ ha i you recall Mr Presiden prior o he Bork
figh he ideological righ in his counry hough was no suppored by Americans
This could no have been said beore he Bork confirmaion figh And ye i can be saely proclaimed
oday ha Americans--Americans--srongly suppor he righ o privacy and find ha here is such a
righ proeced in he Consiuion Nor do I limi he success o his process o he Bork rejecion only I
am equally saisfied albei or differen reasons as o how he process uncioned in approving Jusices
Kennedy and Souer
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BIDEN RULES
As I said when I suppored heir confirmaions neiher man is one whom I would have chosen had I been
Presiden Bu each reflecs a balanced selecion a nonideological conservaive ha sands beween he
Whie House philosophy and he Senae
I migh jus noe parenheically in he decision yeserday on school prayer or prayer beore
convocaions in public schools Jusices Souer and Kennedy ook a posiion diamerically opposed oha ha has been proffered by his adminisraion and he previous one or he pas 11 years
While I have disagreed wih some o he decisions by each o hese wo Juriss I know ha Presiden
Bush mus say he same hing Tha he disagrees wih some o he decisions o he wo men Kennedy
and Souer Bu I offer hem as examples Mr Presiden ha boh men have issued some opinions ha
I sharply rejec Bu in a period o divided Governmen boh rom he Cour o compromise candidaes
who are appropriae or consideraion and whose confirmaions I suppored
In my view he conemporary confirmaion process uncioned well in rejecing Judge Bork and in
approving Jusices Kennedy and Souer And ye sadly even in so succeeding one could see wihin he
process he seeds o an explosion ha was o come wih he Thomas nominaion and he desrucive
orces ha were going o ear i apar
As I said earlier he roo o he curren collapse o he confirmaion process is he adminisraionrsquos
campaign o make he Supreme Cour an agen o an ulrarigh conservaive social agenda which lacks
suppor in he Congress and in he counry
I would jus poin ou again parenheically Mr Presiden ha he enire social agenda o he Reagan
adminisraion has ye o be able o gain a majoriy suppor in he US Senae or he US House o
Represenaives or among he American people over he pas 11 years So ailing he abiliy o do ha boh
Presidens have concluded and did conclude ha he avenue o ha change was o remake he Cour
In describing how he reacors o differen orces and acions have brough abou he difficuly we now
have o ace I do no wan anybody o lose sigh o he ac ha i is he adminisraionrsquos nominaion
agenda ha is he roo cause o his dilemma Tha is i you will he original sin which has creaed all o
he problems ha plague he process oday The adminisraionrsquos desire o placae he righwing o is
pary which is driven by a single issue--overurning Roe versus Wade
To he members o his Republican acion no mere conservaive such as Jusice OrsquoConnor or Jusice
Powell is sae o use he word hey ofen use The adminisraion has urged us o reach or a Scalia
a Bork a Thomas Bu i his is he original sin behind odayrsquos woes i is no he only cause o he
confirmaion deadlock And here are hree consequences o he Reagan-Bush nominaion sraegy ha
have conribued o he problem
Firs Democras and moderae Republicans have placed i ino he hands o he Republican righ by
acceping Roe as he divining rod in reverse making a nomineersquos views or reusal o sae his views on
his quesion he overriding concern in he confirmaion process
Ye in enjoying he righ o permi he single issue o dominae he debae he cener and he lef
have los sigh o he ac ha nominees are chosen by Republicans ulraconservaives They end o
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BIDEN RULES
embrace oher consiuional and jurisprudenial views unrelaed o aborion bu equally a he ar end
o he specrum
To pu i anoher way he cener and he lef which won such broad public suppor or he posiion
agains Judge Borkrsquos nominaion have allowed hemselves o be divided as single-issue paricipans
This has given rise o even more rusraion abou he process rom boh paricipans and observers and
was one cause or he schism ha emerged in he Thomas confirmaion debae Moreover he ocus on
Roe prevens he commitee rom exploring many legiimae issues in our hearing because quesions
abou he nominees on many maters rom he cuting-edge issue o he righ o privacy o he age-old
legal docrine o sare decisis are immediaely assumed by all hose who observed he process o be
cover quesions abou aborion when hey have nohing o do wih aborion
Among he mos rusraing aspecs o he Souer and Thomas hearings was ha when I ried o quesion
he nominees on wheher hey hough individuals had a righ o privacy everyone--he press he public
he nominees my colleagues--hough ha I was rying o ask abou aborion in disguise no mater how
many imes I said ruhully and rankly and I quoe
No orge abou aborion To know how you will ace he many unknown quesions ha will conron he
Cour ino he 21s cenury I mus know wheher or no you hink individuals have a righ o privacy
No mater how many imes I insised everyone believed I was asking abou aborion Tha is jus how
powerully he issue dominaes our process
(Mr KOHL assumed he chair)
Mr BIDEN Second in he period beween he Bork and he Thomas nominaions here developed wha
could be called an uninended conspiracy o exremismrsquo beween he righ and he lef o underminehe confirmaion process and quesion he legiimacy o is oucomes
Simply pu he righ could no accep ha any process which resuled in he rejecion o Judge Bork
was air or legiimae Nowihsanding he conemporaneous declaraion o may Republican Senaors
ha he hearings and process or handling he Bork nominaion were air a subsequen myhology has
developed ha claims oherwise
We are old ha he hearings were iled agains Bork bu here were more winesses who esified or
him han appeared in opposiion I have heard his deea blamed on scheduling o he winesses Well
we simply alernaed pro-con pro-con panel afer panel
And he lis o excuses goes on and on I was he camera angle hey said he beard he lighs he
iming--all unair all engaged in by hose who opposed Bork o bring him down
In sum he conservaive wing o he Republican Pary has never acceped he cold hard ac ha he
Senae rejeced Judge Bork because his views came o be well undersood and were considered
unaccepable And because his rejecion o heir core philosophy is inconceivable o he legal righ
hey have been on a hun or villains ever since
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BIDEN RULES
They have atacked he press as in a recen inemperae speech by a conservaive Federal judge
bashing wo New York Times reporers who are among he fines o cover Supreme Cour hearings Bu
mos o all hese movemen conservaives have atacked he confirmaion process isel and he Senae
or exercising is consiuional duies o conduc i
Bu i does no sop here Mr Presiden
A he same ime he lef oo has clohed is rusraion wih is inabiliy o persuade he American public
o he wisdom o is agenda in anger abou he confirmaion process as well
The lef has reused o accep he ac ha when one poliical branch is conrolled by a conservaive
Republican and he oher has is philosophical ulcrum resing on key Souhern Democras who
hold he balance on close voes in he Senae i is ineviable ha he Cour is going o grow more
conservaive Accepable candidaes mus be ound among hose who sraddle his ideological gul
such as Jusices Kennedy and Souer who were approved by a combined oal o 188 o 9 in he Senae
The lef Mr Presiden is rusraed because a conservaive Presiden and a Senae where he ulcrum isheld by conservaive Souhern Democras is no going o nominae a Jusice Brennan who I hink was
a grea Jusice and we should find people o replace him ideologically They reuse o accep realiy Mr
Presiden jus as he righ reuses o accep he realiy o a Bork deea
Bork was deeaed because his views o wha he hough America should become were differen han
hose held by he vas majoriy o Americans and an overwhelming majoriy o Senaors and had no a
whi o do wih wheher or no he had a beard a camera angle an ad by an ouside group or he order
o winesses
So Mr Presiden he confirmaion process has hus become a convenien scapegoa or ideological
advocaes o compeing social visions--advocaes who have no been able o persuade he generally
moderae American public o he wisdom o eiher o eiher o heir views when ramed in he exreme
In effec hen Mr Presiden hese advocaes have joined in an ad hoc alliance he exreme righ and
he exreme lef o undermine public confidence in a process aimed a moderaion--hoping perhaps o
omen a grea social and culural war in which one or he oher will prevail
The hird problem Mr Presiden is he confirmaion process has been ineced by he general meanness
and nasiness ha pervades our poliical process oday While I believe hey played litle or no role in
he oucome he inaccurae elevision ads ha were run agains Judge Borkrsquos confirmaion only auned
increasingly cuting responses rom he righ
The Thomas nominaion included a level o personal biterness ha may be ypical o our modern
poliical campaigns bu is desrucive o any process dependen upon consensus as is he confirmaion
process Afer he nominaion was announced one o he opponens o Judge Thomas ouside he
Senae hreaened o Bork himrsquo--a menacing pledge ha served no purpose And hen as he hearings
were abou o begin he same conservaive group ha produced he inamous Willie Horon ads ran
elevision commercials atacking members o he Judiciary Commitee including mysel wih he inen
o inimidae--and hey so saed--inimidae our review o he nominaion
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BIDEN RULES
I find i ironic Mr Presiden ha we could recognize he cos--i no find he answers--or his nasiness in
he conex o Presidenial elecions bu lack he same insigh wih respec o he confirmaion process
Many o he same voices who have criicized he commitee or no going hard enough afer allegaions
ha Judge Thomas had improper ravel expenses spieully ranserred a whisleblower a EEOC or
was riends wih a proaparheid lobbyis--many o hese criics o our commitee are among he firs obemoan he ac ha he Presidenial campaign o 1992 has been dominaed by quesions o personal
wrong-doing insead o he real issues
We canno have i boh ways
I oo believe ha he Naion would be beter off i he curren campaign was cenered on dispues over
public policy raher han gossip abou marial fideliy and marijuana use Bu I mus say ha he same
is rue abou our review o Supreme Cour nominees he Naion is enriched when we explore heir
jurisprudenial views i is debased when we plow hrough heir privae lives or dir
As wih Presidenial campaigns he press--perhaps because i is easier perhaps because i sells papers--has oo ofen ocused heir coverage o Supreme Cour nominees on such gossip and personal maters
raher han on he subsanial--bu difficul--ask o rying o discern heir philosophy and heir ideology
because i is heir philosophy and heir ideology ha will affec how I am able o live my lie how my
children will be able o live heir lives no wheher or no when hey were 17 years old hey smoked
marijuana or anyhing else
Le me make i clear here ha I am no now speaking o Proessor Hillrsquos allegaions agains Judge
Thomas which were cerainly serious and significan enough o meri he ull invesigaion ha he
commitee conduced boh beore and afer heir public disclosure Raher I am speaking o he
numerous lesser allegaions agains nominees Bork Kennedy Souer and Thomas which he mosexreme commitee criics say we have done oo litle o pursue
Some examples o wha hese criics waned o see us delve ino come o mind Judge Bork had his
video renal records exhumed and sudied or possible renal o pornographic films Judge Souer has
his marial saus quesioned and el obligaed o produce ex-girlriends o esiy o his viriliy Judge
Thomas was assauled by a whispering campaign ha spread unsubsaniaed rumors o abou he
cause o he end o his firs marriage
Each ime he airing o hese charges enraged Republican allies o hese nominees who considered
he charges unair and a violaion o heir righ o privacy And each ime when he commitee--a my
direcion--reused o explore hese awdry rumors he more exreme criics o our process grew more
and more rusraed wih he resuls
This was anoher ension which came o a head during he Thomas nominaion and which exploded
when Proessor Hillrsquos charges were made public
To sum up hen The confirmaion process launched in 1987--an atemp o provide a means or dealing
wih he Reagan-Bush campaign o ransorm he Supreme Cour ideologically a a ime when hose
ideological views lacked public suppor--has been orn asunder The process lacks he sor o broad-
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BIDEN RULES
based suppor ha could make i work and is credibiliy has been slowly eroded by he criicism i has
received rom boh liberal and conservaive ideologues
A legiimae process ha was buil in good aih o ideniy and confirm consensus nominees has been
desroyed by many o he same corrosive influences ha have so devasaed our Presidenial poliics
and our naional dialog on public affairs
Consequenly i is my view ha--paricularly i he realiy o divided governmen during a ime o grea
change a he Cour coninues in he nex adminisraion--uure confirmaions mus be conduced
differenly han he preceding ones The pressures and ensions on he exising process--which
exploded during he Thomas nominaion figh--make a resoraion o wha came beore Judge Thomasrsquo
nominaion--even i i was desirable--a pracical impossibiliy
THE UNIQUE HISTORY OF ELECTION YEAR NOMINATIONS
Having said ha we ace one immediae quesion Can our Supreme Cour nominaion and confirmaion
processes so racked by discord and biterness be repaired in a Presidenial elecion year Hisoryeaches us ha his is exremely unlikely
Some o our Naionrsquos mos biter and heaed confirmaion fighs have come in Presidenial elecion years
The bruising confirmaion figh over Roger Taneyrsquos nominaion in 1836 he Senaersquos reusal o confirm
our nominaions by Presiden Tyler in 1844 he single voe rejecions o nominees Badger and Black
by lameduck Presidens Fillmore and Buchanan in he mid-19h cenury and he narrow approvals o
Jusices Lamar and Fuller in 1888 are jus some examples o hese fighs in he 19h cenury
Overall while only one in our Supreme Cour nominaions has been he subjec o significan
opposiion he figure rises o one ou o wo when such nominaions are aced on in Presidenial
elecion years
In our own cenury here are wo paricularly poignan cases The 1916 confirmaion figh over Louis
D Brandeis one o Americarsquos grea juriss--a figh filled wih mean-spiried ani-Semiic atacks on he
nominee--is an example o how elecion year poliics can pollue Senae consideraion o a disinguished
candidae And he 1968 filibuser agains Abe Forasrsquo nominaion--an assaul ha was launched by 19
Republican Senaors beore Presiden Johnson had even named Foras as his selecion--is similarly well
known by all who ollow his
Indeed many pundis on boh he lef and he righ quesioned our commiteersquos abiliy o airly process
he Bork nominaion--a year beore he 1988 campaign--wihou becoming enangled in Presidenialpoliics While I believe his concern was misplaced and ulimaely disproved i illusraes how ears o
such poliicizaion can undermine confidence in he confirmaion process
Moreover he radiion agains acing on Supreme Cour nominaions in a Presidenial year is paricularly
srong when he vacancy occurs in he summer or all o ha elecion season
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BIDEN RULES
Thus while a ew Jusices have been confirmed in he summer or all o a Presidenial elecion season
such confirmaions are rare--only five imes in our hisory have summer or all confirmaions been
graned wih he laes--he laes--being he Augus 1846 confirmaion o Jusice Rober Grier
In ac no Jusice has ever been confirmed in Sepember or Ocober o an elecion year--he sor o iming
which has become sandard in he modern confirmaion process Indeed in American hisory he onlyatemp o push hrough a Sepember or Ocober confirmaion was he ailed campaign o approve Abe
Forasrsquo nominaion in 1968 I canno believe anyone would wan o repea ha experience in odayrsquos climae
Moreover o he five Jusices who were confirmed in he summer o an elecion year all five were
nominaed or vacancies ha had arisen beore he summer began Indeed Jusice Grierrsquos Augus
confirmaion was or a vacancy on he Cour ha was more han 2 years old as was he July confirmaion
o Jusice Samuel Miller in 1862
Thus more relevan or he siuaion we could be acing in 1922 is his saisic six Supreme Cour
vacancies have occurred in he summer or all o a Presidenial elecion year and never--no once--has
he Senae confirmed a nominee or hese vacancies beore he November elecion
In our o hese six cases--in 1800 1828 1864 and 1956--he Presiden himsel wihheld making a
nominaion unil afer he elecion was held
In boh o he wo insances where he Presiden did insis on naming a nominee under hese circumsances
Edward Bradord in 1952 and Abe Foras in 1968 he Senae reused o confirm hese selecions
Thus as we ener he summer o he Presidenial elecion year i is ime o consider wheher his
unbroken sring o hisorical radiion should be broken In my view wha hisory suppors common
sense dicaes in he case o 1992 Given he unusual rancor ha prevailed in he Thomas nominaion he
need or some serious reevaluaion o he nominaion and confirmaion process and he overall level o
biterness ha sadly inecs our poliical sysem and his Presidenial campaign already i is my view ha
he prospecs or anyhing bu conflagraion wih respec o a Supreme Cour nominaion his year are
remoe a bes
O Presidens Reaganrsquos and Bushrsquos las seven selecions o he Cour wo were no confirmed and wo
more were approved wih he mos voes cas agains hem in he hisory o he Unied Saes o America
We have seen how Mr Presiden in my view poliics has played ar oo large a role in he Reagan-Bush
nominaions o dae One can only imagine ha role becoming overarching i a choice were made his
year assuming a Jusice announced omorrow ha he or she was sepping down
Should a Jusice resign his summer and he Presiden move o name a successor acions ha will occur
jus days beore he Democraic Presidenial Convenion and weeks beore he Republican Convenion
mees a process ha is already in doub in he minds o many will become disrused by all Senae
consideraion o a nominee under hese circumsances is no air o he Presiden o he nominee or o
he Senae isel
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BIDEN RULES
Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i
will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom
boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns
omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should
consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil
afer he November elecion is compleed
The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy
ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way
o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary
Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer
he poliical campaign season is over
I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns
we will have seen in modern imes
I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i
was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be
permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in
he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic
conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion
mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral
o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion
Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as
I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he
Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and
he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is
nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks
In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain
Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise
beween he branches would no be sofened bu raher he prospecs or such compromise would be
naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process
migh be changed in he nex adminisraion wheher i is a Democra or a Republican
I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive
social agenda ha he Congress and he public have rejeced In his way all he paricipans in he
process can be clear well in advance o how I inend o approach any uure nominaions
Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he
nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o
be chairman in he nex adminisraion
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BIDEN RULES
I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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REFORM OF THE CONFIRMATION PROCESS (Senate - June 25 1992)
Mr BIDEN Mr Presiden I would like o apologize in advance or respassing on he Presidenrsquos ime and
he ime o he Senae In my over 19 years in he Senae I have never sough o speak beore he Senae
or as long a period as I sough oday in morning business
Bu he subjec o which I speak is somehing ha I have given a grea deal o hough been asked by he
Senae o spend some considerable ime hinking abou and i is exremely conroversial And in ligh o
he ac ha we are wihin a day o he ime ha hisorically he Supreme Cour Jusices make judgmens
abou wheher or no hey are going o say on or anoher year i seems somewha propiious alhough
I know o no Jusice who inends o resign--I do no mean o imply ha--my speech his morning is
abou reorming he confirmaion process and he need or a new dawn wih regard o how we conduc
ourselves relaive o he confirmaion process involving Supreme Cour nominees
Seven years ago Harvard law proessor Laurence Tribe refleced on wha was hen he second-oldes
Supreme Cour in hisory and he wroe
A grea Supreme Cour is a sor o Halleyrsquos Come in our consiuional universe a rare operaion arriving
once each lieime burning inensely in our legal firmamen or a brie period beore reurning o he
deep space o consiuional hisory
He added ha a quie period in which here were jus wo Supreme Cour nominaions in 15 years
was he calm beore he consiuional sorm ha surely lies aheadrsquo predicing ha someime in his
decade we will be ossed ino he urbulen process ha has gripped his Naion in he pas And
oday afer he naming o seven men o fill five vacancies on he Supreme Cour in jus 5 years we find
ourselves in he mids o he sorm Proessor Tribe orecass
In hese pas 5 years he US Senae has endured hree o he mos conenious confirmaion fighs in
he hisory o he Unied Saes
The 1986 nominaion o William Rehnquis who was confirmed by he mos voes cas agains him o any
judge o he Supreme Cour in our hisory up o ha poin
The 1987 rejecion o Rober Bork a he end o an epic conflic beween compeing consiuional visions
The subsequen wihdrawal o Douglas Ginsburg jus days afer Presiden Reagan had seleced him o
succeed Bork as his nominee
The fierce fligh in 1991 which none o us I suspec will ever orge over Clarence Thomasrsquo confirmaion
o he Cour which broke Chie Jusice Rehnquisrsquos record or receiving he mos negaive voes in
Senae hisory
The immediae produc o hese conflics he change in he Cour over he pas ew years has already
been dramaic Bu as Duke proessor Waler Dellinger poined ou here is every reason o believe
we may see as many as five more Jusices reire wihin he nex 4 years In all likelihood Mr Presiden
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we sand a only he halway poin in he remaking o he Supreme Cour wih as many confirmaion
conroversies in he coming Presidenial erm as we saw over he pas wo erms combined
By he ime we arrive a he nex elecion year in 1996 here is a subsanial chance ha no member
o he Cour who was serving on he Cour in June o 1986 will remain on he bench Such a complee
replacemen o he Cour in jus 10 years has only one preceden since he Cour was permanenlyexpanded o nine members over 100 years ago Today as we sand a he midpoin in his dramaic
change I would like o discuss wha has ranspired over he pas ew years wih respec o he
confirmaion process
Mr Presiden I also wan o discuss he quesion o wha should be done i a Supreme Cour vacancy
occurs his summer Finally I wan o offer our general proposals or how I believe he nominaion and
confirmaion process should be changed or uure nominaions
Le me sar firs wih a consideraion o he confirmaion process o he pas decade As I menioned
earlier Presidens Reagan and Bush have named eigh nominees or six posiions on he Cour during
heir Presidenial erms This is no he firs ime in our hisory ha a srong ideological Presiden and his
loyal successor have combined o shape he Cour
Presidens Washingon and Adams made 18 nominaions o which 14 were confirmed and served
among he Courrsquos 6 Jusices
Presidens Lincoln and Gran nominaed 13 candidaes or he Cour o whom 9 were confirmed
and served
Presidens Roosevel and Truman named 13 Jusices all confirmed in heir combined erms in he
Whie House
Wha disinguished he Reagan-Bush Jusices rom hese hisorical parallels however is ha hal o
hem have been nominaed in a period o a divided Governmen In each o hese previous imes a
sweeping naionwide consensus exised as refleced by he elecion o boh poliical branches o like-
minded officials which jusified he sweeping changes ha ook place a he Supreme Cour
Bu over he pas wo decades Mr Presiden no such consensus has exised unlike he eras o which I
poined--Washingon-Adams Lincoln-Gran Roosevel-Truman
Since 1968 Republicans have conrolled he Whie House or 20 o 24 years Democras have conrolled
he Senae or 18 years o his period The public has no given eiher pary a mandae o remake heCour ino a body reflecive o a srong vision o our respecive philosophies and boh o our paries
should finally honesly admi o ha ac Boh o our paries should honesly have conceded his ac
Bu neiher has hus ar
O course his is no he firs period when a divided Governmen has been required o fill he hird branch
o Governmen Abou one-fifh o all Supreme Cour Jusices have been confirmed by a pary differen
rom he Presiden One-hird o all Jusices confirmed since 1930 have been approved under
hese circumsances
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BIDEN RULES
I was a Senae conrolled by progressive Republicans and Democras ha confirmed hree o Presiden
Hooverrsquos our nominees or he Cour and a Democraic Senae reviewed and approved Eisenhower
nominees Ye in hese previous periods o divided Governmen Mr Presiden indeed in some
periods where a Presiden and he Senae shared he same pary Presidens commonly have aken
he Consiuion a is word and asked or he Senaersquos advice--advice--as well as is consen These
Presidens have consuled wih he Senae abou heir choices or he Cour andor chose nominees
wih balanced or diverse ideologies Thus he conservaive Republican Hoover named conservaive
Chie Jusice Charles Evan Hughes bu also named a moderae Owen Robers and a liberal Benjamin
Cardoza he later Benjamin Cardoza afer heaed execuive-Senae consulaions
Similarly Presiden Eisenhowerrsquos choices or he Cour included conservaive John Harlan and Charles
Whitaker moderae Poter Sewar and liberals Earl Warren and William Brennan Even Presiden Nixon
who showed no relucance o ake ull advanage o Presidenial prerogaives balanced his choices o
conservaives Warren Burger and William Rehnquis wih hose o moderae Republican Harry Blackmun
and conservaive Democra Lewis Powell
This o course has no been he model ha Presidens Reagan and Bush have ollowed Indeed even
lacking he broad suppor or heir vision o he Cour which Presidens Washingon and Adams Lincoln
and Gran and Roosevel and Truman had Presidens Reagan and Bush have ried o recas he Cour in
heir ideological image as hese Presidens did
Pu anoher way This is no he firs ime ha a andem o Presidens have sough o remake he Supreme
Cour nor is i he firs ime ha divided Governmen has had o fill a number o seas in ha body
Bu i is he firs ime ha boh have been atemped simulaneously and ha more han anyhing else
has been a he roo o he curren conroversy surrounding he selecion o he Supreme Cour Jusices
I was o cope wih his sress a sress creaed by he decision o Presidens Reagan and Bush o atemp
o move he Cour ideologically ino a radical new direcion which his counry does no suppor i was
o cope wih his sress ha he modern confirmaion process was creaed And on his poin here
should be no doub and no uncerainy
The use ha Presidens Reagan and Bush made o he Supreme Cour nominaing process in a period
o divided Governmen is wihou parallel in our Naionrsquos hisory I is his power grab ha has unleashed
he powerul and diverse orces ha have ravaged he confirmaion process I he American people are
dissaisfied wih where hey find he process oday hey mus undersand where he discord ha has
come o characerize i began Wih Presidens Reagan and Bush and heir decision o cede power in henominaing process o he radical ligh wihin heir own adminisraion
I was in he ace o his unprecedened challenge o he Supreme Courrsquos selecion process ha we in
he Senae developed an unprecedened confirmaion process The cenerpiece o his new process was
a rank recogniion o he legiimacy o Senae consideraion o a nomineersquos judicial philosophy as par o
he confirmaion review
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BIDEN RULES
I ask unanimous consen a his poin ha a previous speech I have made on he Senaersquos righ o look a
and obligaion o look a he ideology o he nominees be prined in he Record
[removed previous esimony insered ino he record]
Mr BIDEN Mr Presiden a he ime I firs se orh his noion during he Bork confirmaion debae i was
a widely conroversial noion ha is ha we as well as he Presiden had a righ o look a ideology Ye
scholarly works reaffirmed by he recen aricles o Pro David Srauss and Cass Sunsein have always
ound a solid basis or his view in he inenions o our Framers and in he hisory o our Naion
In my view he debae over he Senaersquos review o ideology has been ruiul We have quashed he myh
ha he Senae mus deer o a Presidenrsquos choice o a Supreme Cour Jusice he men and women a he
apex o he independen hird branch o Governmen As he Senae properly does or nominees in he
execuive branch he role o he Senae as a vial parner in reviewing Supreme Cour nominaions has
been enhanced And he debae over his role caused even hose who were iniially skepical like Pro
Henry Monaghan who oulined he grounds or his conversion in a 1988 aricle in he Harvard Law Review
o join in he broad consensus over he propriey o more acive Senae paricipaion in he process
More undamenally Mr Presiden he serious and proound debae ha he Bork nominaion sparked
was among he mos imporan naional discussions abou our Consiuion is meaning and he
direcion o our Supreme Cour in his cenury
Beore he Bork confirmaion figh he legacy o he Warren cour was seen as enuous by scholars and
was ill suppored by he public The legal righ hough ha judicial acivism was a rallying cry ha would
move America agains he Courrsquos projecion o proecion o personal reedoms is one personone voe
docrine and oher progressive decisions ha he legal righ hough had no popular suppor and less
legal oundaion
And he legal lef prior o he Bork figh eared ha he righ migh be correc in is assessmen o
popular opinion ha is ha he warren cour and is major decisions were no popularly suppored Bu
he public reacion o Judge Borkrsquos views is rejecion o he righrsquos legal philosophy and judicial noions
proved jus he opposie
And while some aspecs o he Warren Cour decisions remain under assaul paricularly in he area o
criminal law ohers have been irrevocably secured in he hears and minds o mos Americans such as
he Courrsquos recogniion o he righ o privacy a righ ha i you recall Mr Presiden prior o he Bork
figh he ideological righ in his counry hough was no suppored by Americans
This could no have been said beore he Bork confirmaion figh And ye i can be saely proclaimed
oday ha Americans--Americans--srongly suppor he righ o privacy and find ha here is such a
righ proeced in he Consiuion Nor do I limi he success o his process o he Bork rejecion only I
am equally saisfied albei or differen reasons as o how he process uncioned in approving Jusices
Kennedy and Souer
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BIDEN RULES
As I said when I suppored heir confirmaions neiher man is one whom I would have chosen had I been
Presiden Bu each reflecs a balanced selecion a nonideological conservaive ha sands beween he
Whie House philosophy and he Senae
I migh jus noe parenheically in he decision yeserday on school prayer or prayer beore
convocaions in public schools Jusices Souer and Kennedy ook a posiion diamerically opposed oha ha has been proffered by his adminisraion and he previous one or he pas 11 years
While I have disagreed wih some o he decisions by each o hese wo Juriss I know ha Presiden
Bush mus say he same hing Tha he disagrees wih some o he decisions o he wo men Kennedy
and Souer Bu I offer hem as examples Mr Presiden ha boh men have issued some opinions ha
I sharply rejec Bu in a period o divided Governmen boh rom he Cour o compromise candidaes
who are appropriae or consideraion and whose confirmaions I suppored
In my view he conemporary confirmaion process uncioned well in rejecing Judge Bork and in
approving Jusices Kennedy and Souer And ye sadly even in so succeeding one could see wihin he
process he seeds o an explosion ha was o come wih he Thomas nominaion and he desrucive
orces ha were going o ear i apar
As I said earlier he roo o he curren collapse o he confirmaion process is he adminisraionrsquos
campaign o make he Supreme Cour an agen o an ulrarigh conservaive social agenda which lacks
suppor in he Congress and in he counry
I would jus poin ou again parenheically Mr Presiden ha he enire social agenda o he Reagan
adminisraion has ye o be able o gain a majoriy suppor in he US Senae or he US House o
Represenaives or among he American people over he pas 11 years So ailing he abiliy o do ha boh
Presidens have concluded and did conclude ha he avenue o ha change was o remake he Cour
In describing how he reacors o differen orces and acions have brough abou he difficuly we now
have o ace I do no wan anybody o lose sigh o he ac ha i is he adminisraionrsquos nominaion
agenda ha is he roo cause o his dilemma Tha is i you will he original sin which has creaed all o
he problems ha plague he process oday The adminisraionrsquos desire o placae he righwing o is
pary which is driven by a single issue--overurning Roe versus Wade
To he members o his Republican acion no mere conservaive such as Jusice OrsquoConnor or Jusice
Powell is sae o use he word hey ofen use The adminisraion has urged us o reach or a Scalia
a Bork a Thomas Bu i his is he original sin behind odayrsquos woes i is no he only cause o he
confirmaion deadlock And here are hree consequences o he Reagan-Bush nominaion sraegy ha
have conribued o he problem
Firs Democras and moderae Republicans have placed i ino he hands o he Republican righ by
acceping Roe as he divining rod in reverse making a nomineersquos views or reusal o sae his views on
his quesion he overriding concern in he confirmaion process
Ye in enjoying he righ o permi he single issue o dominae he debae he cener and he lef
have los sigh o he ac ha nominees are chosen by Republicans ulraconservaives They end o
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BIDEN RULES
embrace oher consiuional and jurisprudenial views unrelaed o aborion bu equally a he ar end
o he specrum
To pu i anoher way he cener and he lef which won such broad public suppor or he posiion
agains Judge Borkrsquos nominaion have allowed hemselves o be divided as single-issue paricipans
This has given rise o even more rusraion abou he process rom boh paricipans and observers and
was one cause or he schism ha emerged in he Thomas confirmaion debae Moreover he ocus on
Roe prevens he commitee rom exploring many legiimae issues in our hearing because quesions
abou he nominees on many maters rom he cuting-edge issue o he righ o privacy o he age-old
legal docrine o sare decisis are immediaely assumed by all hose who observed he process o be
cover quesions abou aborion when hey have nohing o do wih aborion
Among he mos rusraing aspecs o he Souer and Thomas hearings was ha when I ried o quesion
he nominees on wheher hey hough individuals had a righ o privacy everyone--he press he public
he nominees my colleagues--hough ha I was rying o ask abou aborion in disguise no mater how
many imes I said ruhully and rankly and I quoe
No orge abou aborion To know how you will ace he many unknown quesions ha will conron he
Cour ino he 21s cenury I mus know wheher or no you hink individuals have a righ o privacy
No mater how many imes I insised everyone believed I was asking abou aborion Tha is jus how
powerully he issue dominaes our process
(Mr KOHL assumed he chair)
Mr BIDEN Second in he period beween he Bork and he Thomas nominaions here developed wha
could be called an uninended conspiracy o exremismrsquo beween he righ and he lef o underminehe confirmaion process and quesion he legiimacy o is oucomes
Simply pu he righ could no accep ha any process which resuled in he rejecion o Judge Bork
was air or legiimae Nowihsanding he conemporaneous declaraion o may Republican Senaors
ha he hearings and process or handling he Bork nominaion were air a subsequen myhology has
developed ha claims oherwise
We are old ha he hearings were iled agains Bork bu here were more winesses who esified or
him han appeared in opposiion I have heard his deea blamed on scheduling o he winesses Well
we simply alernaed pro-con pro-con panel afer panel
And he lis o excuses goes on and on I was he camera angle hey said he beard he lighs he
iming--all unair all engaged in by hose who opposed Bork o bring him down
In sum he conservaive wing o he Republican Pary has never acceped he cold hard ac ha he
Senae rejeced Judge Bork because his views came o be well undersood and were considered
unaccepable And because his rejecion o heir core philosophy is inconceivable o he legal righ
hey have been on a hun or villains ever since
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BIDEN RULES
They have atacked he press as in a recen inemperae speech by a conservaive Federal judge
bashing wo New York Times reporers who are among he fines o cover Supreme Cour hearings Bu
mos o all hese movemen conservaives have atacked he confirmaion process isel and he Senae
or exercising is consiuional duies o conduc i
Bu i does no sop here Mr Presiden
A he same ime he lef oo has clohed is rusraion wih is inabiliy o persuade he American public
o he wisdom o is agenda in anger abou he confirmaion process as well
The lef has reused o accep he ac ha when one poliical branch is conrolled by a conservaive
Republican and he oher has is philosophical ulcrum resing on key Souhern Democras who
hold he balance on close voes in he Senae i is ineviable ha he Cour is going o grow more
conservaive Accepable candidaes mus be ound among hose who sraddle his ideological gul
such as Jusices Kennedy and Souer who were approved by a combined oal o 188 o 9 in he Senae
The lef Mr Presiden is rusraed because a conservaive Presiden and a Senae where he ulcrum isheld by conservaive Souhern Democras is no going o nominae a Jusice Brennan who I hink was
a grea Jusice and we should find people o replace him ideologically They reuse o accep realiy Mr
Presiden jus as he righ reuses o accep he realiy o a Bork deea
Bork was deeaed because his views o wha he hough America should become were differen han
hose held by he vas majoriy o Americans and an overwhelming majoriy o Senaors and had no a
whi o do wih wheher or no he had a beard a camera angle an ad by an ouside group or he order
o winesses
So Mr Presiden he confirmaion process has hus become a convenien scapegoa or ideological
advocaes o compeing social visions--advocaes who have no been able o persuade he generally
moderae American public o he wisdom o eiher o eiher o heir views when ramed in he exreme
In effec hen Mr Presiden hese advocaes have joined in an ad hoc alliance he exreme righ and
he exreme lef o undermine public confidence in a process aimed a moderaion--hoping perhaps o
omen a grea social and culural war in which one or he oher will prevail
The hird problem Mr Presiden is he confirmaion process has been ineced by he general meanness
and nasiness ha pervades our poliical process oday While I believe hey played litle or no role in
he oucome he inaccurae elevision ads ha were run agains Judge Borkrsquos confirmaion only auned
increasingly cuting responses rom he righ
The Thomas nominaion included a level o personal biterness ha may be ypical o our modern
poliical campaigns bu is desrucive o any process dependen upon consensus as is he confirmaion
process Afer he nominaion was announced one o he opponens o Judge Thomas ouside he
Senae hreaened o Bork himrsquo--a menacing pledge ha served no purpose And hen as he hearings
were abou o begin he same conservaive group ha produced he inamous Willie Horon ads ran
elevision commercials atacking members o he Judiciary Commitee including mysel wih he inen
o inimidae--and hey so saed--inimidae our review o he nominaion
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I find i ironic Mr Presiden ha we could recognize he cos--i no find he answers--or his nasiness in
he conex o Presidenial elecions bu lack he same insigh wih respec o he confirmaion process
Many o he same voices who have criicized he commitee or no going hard enough afer allegaions
ha Judge Thomas had improper ravel expenses spieully ranserred a whisleblower a EEOC or
was riends wih a proaparheid lobbyis--many o hese criics o our commitee are among he firs obemoan he ac ha he Presidenial campaign o 1992 has been dominaed by quesions o personal
wrong-doing insead o he real issues
We canno have i boh ways
I oo believe ha he Naion would be beter off i he curren campaign was cenered on dispues over
public policy raher han gossip abou marial fideliy and marijuana use Bu I mus say ha he same
is rue abou our review o Supreme Cour nominees he Naion is enriched when we explore heir
jurisprudenial views i is debased when we plow hrough heir privae lives or dir
As wih Presidenial campaigns he press--perhaps because i is easier perhaps because i sells papers--has oo ofen ocused heir coverage o Supreme Cour nominees on such gossip and personal maters
raher han on he subsanial--bu difficul--ask o rying o discern heir philosophy and heir ideology
because i is heir philosophy and heir ideology ha will affec how I am able o live my lie how my
children will be able o live heir lives no wheher or no when hey were 17 years old hey smoked
marijuana or anyhing else
Le me make i clear here ha I am no now speaking o Proessor Hillrsquos allegaions agains Judge
Thomas which were cerainly serious and significan enough o meri he ull invesigaion ha he
commitee conduced boh beore and afer heir public disclosure Raher I am speaking o he
numerous lesser allegaions agains nominees Bork Kennedy Souer and Thomas which he mosexreme commitee criics say we have done oo litle o pursue
Some examples o wha hese criics waned o see us delve ino come o mind Judge Bork had his
video renal records exhumed and sudied or possible renal o pornographic films Judge Souer has
his marial saus quesioned and el obligaed o produce ex-girlriends o esiy o his viriliy Judge
Thomas was assauled by a whispering campaign ha spread unsubsaniaed rumors o abou he
cause o he end o his firs marriage
Each ime he airing o hese charges enraged Republican allies o hese nominees who considered
he charges unair and a violaion o heir righ o privacy And each ime when he commitee--a my
direcion--reused o explore hese awdry rumors he more exreme criics o our process grew more
and more rusraed wih he resuls
This was anoher ension which came o a head during he Thomas nominaion and which exploded
when Proessor Hillrsquos charges were made public
To sum up hen The confirmaion process launched in 1987--an atemp o provide a means or dealing
wih he Reagan-Bush campaign o ransorm he Supreme Cour ideologically a a ime when hose
ideological views lacked public suppor--has been orn asunder The process lacks he sor o broad-
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BIDEN RULES
based suppor ha could make i work and is credibiliy has been slowly eroded by he criicism i has
received rom boh liberal and conservaive ideologues
A legiimae process ha was buil in good aih o ideniy and confirm consensus nominees has been
desroyed by many o he same corrosive influences ha have so devasaed our Presidenial poliics
and our naional dialog on public affairs
Consequenly i is my view ha--paricularly i he realiy o divided governmen during a ime o grea
change a he Cour coninues in he nex adminisraion--uure confirmaions mus be conduced
differenly han he preceding ones The pressures and ensions on he exising process--which
exploded during he Thomas nominaion figh--make a resoraion o wha came beore Judge Thomasrsquo
nominaion--even i i was desirable--a pracical impossibiliy
THE UNIQUE HISTORY OF ELECTION YEAR NOMINATIONS
Having said ha we ace one immediae quesion Can our Supreme Cour nominaion and confirmaion
processes so racked by discord and biterness be repaired in a Presidenial elecion year Hisoryeaches us ha his is exremely unlikely
Some o our Naionrsquos mos biter and heaed confirmaion fighs have come in Presidenial elecion years
The bruising confirmaion figh over Roger Taneyrsquos nominaion in 1836 he Senaersquos reusal o confirm
our nominaions by Presiden Tyler in 1844 he single voe rejecions o nominees Badger and Black
by lameduck Presidens Fillmore and Buchanan in he mid-19h cenury and he narrow approvals o
Jusices Lamar and Fuller in 1888 are jus some examples o hese fighs in he 19h cenury
Overall while only one in our Supreme Cour nominaions has been he subjec o significan
opposiion he figure rises o one ou o wo when such nominaions are aced on in Presidenial
elecion years
In our own cenury here are wo paricularly poignan cases The 1916 confirmaion figh over Louis
D Brandeis one o Americarsquos grea juriss--a figh filled wih mean-spiried ani-Semiic atacks on he
nominee--is an example o how elecion year poliics can pollue Senae consideraion o a disinguished
candidae And he 1968 filibuser agains Abe Forasrsquo nominaion--an assaul ha was launched by 19
Republican Senaors beore Presiden Johnson had even named Foras as his selecion--is similarly well
known by all who ollow his
Indeed many pundis on boh he lef and he righ quesioned our commiteersquos abiliy o airly process
he Bork nominaion--a year beore he 1988 campaign--wihou becoming enangled in Presidenialpoliics While I believe his concern was misplaced and ulimaely disproved i illusraes how ears o
such poliicizaion can undermine confidence in he confirmaion process
Moreover he radiion agains acing on Supreme Cour nominaions in a Presidenial year is paricularly
srong when he vacancy occurs in he summer or all o ha elecion season
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BIDEN RULES
Thus while a ew Jusices have been confirmed in he summer or all o a Presidenial elecion season
such confirmaions are rare--only five imes in our hisory have summer or all confirmaions been
graned wih he laes--he laes--being he Augus 1846 confirmaion o Jusice Rober Grier
In ac no Jusice has ever been confirmed in Sepember or Ocober o an elecion year--he sor o iming
which has become sandard in he modern confirmaion process Indeed in American hisory he onlyatemp o push hrough a Sepember or Ocober confirmaion was he ailed campaign o approve Abe
Forasrsquo nominaion in 1968 I canno believe anyone would wan o repea ha experience in odayrsquos climae
Moreover o he five Jusices who were confirmed in he summer o an elecion year all five were
nominaed or vacancies ha had arisen beore he summer began Indeed Jusice Grierrsquos Augus
confirmaion was or a vacancy on he Cour ha was more han 2 years old as was he July confirmaion
o Jusice Samuel Miller in 1862
Thus more relevan or he siuaion we could be acing in 1922 is his saisic six Supreme Cour
vacancies have occurred in he summer or all o a Presidenial elecion year and never--no once--has
he Senae confirmed a nominee or hese vacancies beore he November elecion
In our o hese six cases--in 1800 1828 1864 and 1956--he Presiden himsel wihheld making a
nominaion unil afer he elecion was held
In boh o he wo insances where he Presiden did insis on naming a nominee under hese circumsances
Edward Bradord in 1952 and Abe Foras in 1968 he Senae reused o confirm hese selecions
Thus as we ener he summer o he Presidenial elecion year i is ime o consider wheher his
unbroken sring o hisorical radiion should be broken In my view wha hisory suppors common
sense dicaes in he case o 1992 Given he unusual rancor ha prevailed in he Thomas nominaion he
need or some serious reevaluaion o he nominaion and confirmaion process and he overall level o
biterness ha sadly inecs our poliical sysem and his Presidenial campaign already i is my view ha
he prospecs or anyhing bu conflagraion wih respec o a Supreme Cour nominaion his year are
remoe a bes
O Presidens Reaganrsquos and Bushrsquos las seven selecions o he Cour wo were no confirmed and wo
more were approved wih he mos voes cas agains hem in he hisory o he Unied Saes o America
We have seen how Mr Presiden in my view poliics has played ar oo large a role in he Reagan-Bush
nominaions o dae One can only imagine ha role becoming overarching i a choice were made his
year assuming a Jusice announced omorrow ha he or she was sepping down
Should a Jusice resign his summer and he Presiden move o name a successor acions ha will occur
jus days beore he Democraic Presidenial Convenion and weeks beore he Republican Convenion
mees a process ha is already in doub in he minds o many will become disrused by all Senae
consideraion o a nominee under hese circumsances is no air o he Presiden o he nominee or o
he Senae isel
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BIDEN RULES
Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i
will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom
boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns
omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should
consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil
afer he November elecion is compleed
The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy
ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way
o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary
Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer
he poliical campaign season is over
I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns
we will have seen in modern imes
I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i
was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be
permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in
he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic
conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion
mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral
o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion
Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as
I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he
Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and
he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is
nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks
In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain
Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise
beween he branches would no be sofened bu raher he prospecs or such compromise would be
naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process
migh be changed in he nex adminisraion wheher i is a Democra or a Republican
I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive
social agenda ha he Congress and he public have rejeced In his way all he paricipans in he
process can be clear well in advance o how I inend o approach any uure nominaions
Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he
nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o
be chairman in he nex adminisraion
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I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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we sand a only he halway poin in he remaking o he Supreme Cour wih as many confirmaion
conroversies in he coming Presidenial erm as we saw over he pas wo erms combined
By he ime we arrive a he nex elecion year in 1996 here is a subsanial chance ha no member
o he Cour who was serving on he Cour in June o 1986 will remain on he bench Such a complee
replacemen o he Cour in jus 10 years has only one preceden since he Cour was permanenlyexpanded o nine members over 100 years ago Today as we sand a he midpoin in his dramaic
change I would like o discuss wha has ranspired over he pas ew years wih respec o he
confirmaion process
Mr Presiden I also wan o discuss he quesion o wha should be done i a Supreme Cour vacancy
occurs his summer Finally I wan o offer our general proposals or how I believe he nominaion and
confirmaion process should be changed or uure nominaions
Le me sar firs wih a consideraion o he confirmaion process o he pas decade As I menioned
earlier Presidens Reagan and Bush have named eigh nominees or six posiions on he Cour during
heir Presidenial erms This is no he firs ime in our hisory ha a srong ideological Presiden and his
loyal successor have combined o shape he Cour
Presidens Washingon and Adams made 18 nominaions o which 14 were confirmed and served
among he Courrsquos 6 Jusices
Presidens Lincoln and Gran nominaed 13 candidaes or he Cour o whom 9 were confirmed
and served
Presidens Roosevel and Truman named 13 Jusices all confirmed in heir combined erms in he
Whie House
Wha disinguished he Reagan-Bush Jusices rom hese hisorical parallels however is ha hal o
hem have been nominaed in a period o a divided Governmen In each o hese previous imes a
sweeping naionwide consensus exised as refleced by he elecion o boh poliical branches o like-
minded officials which jusified he sweeping changes ha ook place a he Supreme Cour
Bu over he pas wo decades Mr Presiden no such consensus has exised unlike he eras o which I
poined--Washingon-Adams Lincoln-Gran Roosevel-Truman
Since 1968 Republicans have conrolled he Whie House or 20 o 24 years Democras have conrolled
he Senae or 18 years o his period The public has no given eiher pary a mandae o remake heCour ino a body reflecive o a srong vision o our respecive philosophies and boh o our paries
should finally honesly admi o ha ac Boh o our paries should honesly have conceded his ac
Bu neiher has hus ar
O course his is no he firs period when a divided Governmen has been required o fill he hird branch
o Governmen Abou one-fifh o all Supreme Cour Jusices have been confirmed by a pary differen
rom he Presiden One-hird o all Jusices confirmed since 1930 have been approved under
hese circumsances
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I was a Senae conrolled by progressive Republicans and Democras ha confirmed hree o Presiden
Hooverrsquos our nominees or he Cour and a Democraic Senae reviewed and approved Eisenhower
nominees Ye in hese previous periods o divided Governmen Mr Presiden indeed in some
periods where a Presiden and he Senae shared he same pary Presidens commonly have aken
he Consiuion a is word and asked or he Senaersquos advice--advice--as well as is consen These
Presidens have consuled wih he Senae abou heir choices or he Cour andor chose nominees
wih balanced or diverse ideologies Thus he conservaive Republican Hoover named conservaive
Chie Jusice Charles Evan Hughes bu also named a moderae Owen Robers and a liberal Benjamin
Cardoza he later Benjamin Cardoza afer heaed execuive-Senae consulaions
Similarly Presiden Eisenhowerrsquos choices or he Cour included conservaive John Harlan and Charles
Whitaker moderae Poter Sewar and liberals Earl Warren and William Brennan Even Presiden Nixon
who showed no relucance o ake ull advanage o Presidenial prerogaives balanced his choices o
conservaives Warren Burger and William Rehnquis wih hose o moderae Republican Harry Blackmun
and conservaive Democra Lewis Powell
This o course has no been he model ha Presidens Reagan and Bush have ollowed Indeed even
lacking he broad suppor or heir vision o he Cour which Presidens Washingon and Adams Lincoln
and Gran and Roosevel and Truman had Presidens Reagan and Bush have ried o recas he Cour in
heir ideological image as hese Presidens did
Pu anoher way This is no he firs ime ha a andem o Presidens have sough o remake he Supreme
Cour nor is i he firs ime ha divided Governmen has had o fill a number o seas in ha body
Bu i is he firs ime ha boh have been atemped simulaneously and ha more han anyhing else
has been a he roo o he curren conroversy surrounding he selecion o he Supreme Cour Jusices
I was o cope wih his sress a sress creaed by he decision o Presidens Reagan and Bush o atemp
o move he Cour ideologically ino a radical new direcion which his counry does no suppor i was
o cope wih his sress ha he modern confirmaion process was creaed And on his poin here
should be no doub and no uncerainy
The use ha Presidens Reagan and Bush made o he Supreme Cour nominaing process in a period
o divided Governmen is wihou parallel in our Naionrsquos hisory I is his power grab ha has unleashed
he powerul and diverse orces ha have ravaged he confirmaion process I he American people are
dissaisfied wih where hey find he process oday hey mus undersand where he discord ha has
come o characerize i began Wih Presidens Reagan and Bush and heir decision o cede power in henominaing process o he radical ligh wihin heir own adminisraion
I was in he ace o his unprecedened challenge o he Supreme Courrsquos selecion process ha we in
he Senae developed an unprecedened confirmaion process The cenerpiece o his new process was
a rank recogniion o he legiimacy o Senae consideraion o a nomineersquos judicial philosophy as par o
he confirmaion review
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BIDEN RULES
I ask unanimous consen a his poin ha a previous speech I have made on he Senaersquos righ o look a
and obligaion o look a he ideology o he nominees be prined in he Record
[removed previous esimony insered ino he record]
Mr BIDEN Mr Presiden a he ime I firs se orh his noion during he Bork confirmaion debae i was
a widely conroversial noion ha is ha we as well as he Presiden had a righ o look a ideology Ye
scholarly works reaffirmed by he recen aricles o Pro David Srauss and Cass Sunsein have always
ound a solid basis or his view in he inenions o our Framers and in he hisory o our Naion
In my view he debae over he Senaersquos review o ideology has been ruiul We have quashed he myh
ha he Senae mus deer o a Presidenrsquos choice o a Supreme Cour Jusice he men and women a he
apex o he independen hird branch o Governmen As he Senae properly does or nominees in he
execuive branch he role o he Senae as a vial parner in reviewing Supreme Cour nominaions has
been enhanced And he debae over his role caused even hose who were iniially skepical like Pro
Henry Monaghan who oulined he grounds or his conversion in a 1988 aricle in he Harvard Law Review
o join in he broad consensus over he propriey o more acive Senae paricipaion in he process
More undamenally Mr Presiden he serious and proound debae ha he Bork nominaion sparked
was among he mos imporan naional discussions abou our Consiuion is meaning and he
direcion o our Supreme Cour in his cenury
Beore he Bork confirmaion figh he legacy o he Warren cour was seen as enuous by scholars and
was ill suppored by he public The legal righ hough ha judicial acivism was a rallying cry ha would
move America agains he Courrsquos projecion o proecion o personal reedoms is one personone voe
docrine and oher progressive decisions ha he legal righ hough had no popular suppor and less
legal oundaion
And he legal lef prior o he Bork figh eared ha he righ migh be correc in is assessmen o
popular opinion ha is ha he warren cour and is major decisions were no popularly suppored Bu
he public reacion o Judge Borkrsquos views is rejecion o he righrsquos legal philosophy and judicial noions
proved jus he opposie
And while some aspecs o he Warren Cour decisions remain under assaul paricularly in he area o
criminal law ohers have been irrevocably secured in he hears and minds o mos Americans such as
he Courrsquos recogniion o he righ o privacy a righ ha i you recall Mr Presiden prior o he Bork
figh he ideological righ in his counry hough was no suppored by Americans
This could no have been said beore he Bork confirmaion figh And ye i can be saely proclaimed
oday ha Americans--Americans--srongly suppor he righ o privacy and find ha here is such a
righ proeced in he Consiuion Nor do I limi he success o his process o he Bork rejecion only I
am equally saisfied albei or differen reasons as o how he process uncioned in approving Jusices
Kennedy and Souer
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BIDEN RULES
As I said when I suppored heir confirmaions neiher man is one whom I would have chosen had I been
Presiden Bu each reflecs a balanced selecion a nonideological conservaive ha sands beween he
Whie House philosophy and he Senae
I migh jus noe parenheically in he decision yeserday on school prayer or prayer beore
convocaions in public schools Jusices Souer and Kennedy ook a posiion diamerically opposed oha ha has been proffered by his adminisraion and he previous one or he pas 11 years
While I have disagreed wih some o he decisions by each o hese wo Juriss I know ha Presiden
Bush mus say he same hing Tha he disagrees wih some o he decisions o he wo men Kennedy
and Souer Bu I offer hem as examples Mr Presiden ha boh men have issued some opinions ha
I sharply rejec Bu in a period o divided Governmen boh rom he Cour o compromise candidaes
who are appropriae or consideraion and whose confirmaions I suppored
In my view he conemporary confirmaion process uncioned well in rejecing Judge Bork and in
approving Jusices Kennedy and Souer And ye sadly even in so succeeding one could see wihin he
process he seeds o an explosion ha was o come wih he Thomas nominaion and he desrucive
orces ha were going o ear i apar
As I said earlier he roo o he curren collapse o he confirmaion process is he adminisraionrsquos
campaign o make he Supreme Cour an agen o an ulrarigh conservaive social agenda which lacks
suppor in he Congress and in he counry
I would jus poin ou again parenheically Mr Presiden ha he enire social agenda o he Reagan
adminisraion has ye o be able o gain a majoriy suppor in he US Senae or he US House o
Represenaives or among he American people over he pas 11 years So ailing he abiliy o do ha boh
Presidens have concluded and did conclude ha he avenue o ha change was o remake he Cour
In describing how he reacors o differen orces and acions have brough abou he difficuly we now
have o ace I do no wan anybody o lose sigh o he ac ha i is he adminisraionrsquos nominaion
agenda ha is he roo cause o his dilemma Tha is i you will he original sin which has creaed all o
he problems ha plague he process oday The adminisraionrsquos desire o placae he righwing o is
pary which is driven by a single issue--overurning Roe versus Wade
To he members o his Republican acion no mere conservaive such as Jusice OrsquoConnor or Jusice
Powell is sae o use he word hey ofen use The adminisraion has urged us o reach or a Scalia
a Bork a Thomas Bu i his is he original sin behind odayrsquos woes i is no he only cause o he
confirmaion deadlock And here are hree consequences o he Reagan-Bush nominaion sraegy ha
have conribued o he problem
Firs Democras and moderae Republicans have placed i ino he hands o he Republican righ by
acceping Roe as he divining rod in reverse making a nomineersquos views or reusal o sae his views on
his quesion he overriding concern in he confirmaion process
Ye in enjoying he righ o permi he single issue o dominae he debae he cener and he lef
have los sigh o he ac ha nominees are chosen by Republicans ulraconservaives They end o
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BIDEN RULES
embrace oher consiuional and jurisprudenial views unrelaed o aborion bu equally a he ar end
o he specrum
To pu i anoher way he cener and he lef which won such broad public suppor or he posiion
agains Judge Borkrsquos nominaion have allowed hemselves o be divided as single-issue paricipans
This has given rise o even more rusraion abou he process rom boh paricipans and observers and
was one cause or he schism ha emerged in he Thomas confirmaion debae Moreover he ocus on
Roe prevens he commitee rom exploring many legiimae issues in our hearing because quesions
abou he nominees on many maters rom he cuting-edge issue o he righ o privacy o he age-old
legal docrine o sare decisis are immediaely assumed by all hose who observed he process o be
cover quesions abou aborion when hey have nohing o do wih aborion
Among he mos rusraing aspecs o he Souer and Thomas hearings was ha when I ried o quesion
he nominees on wheher hey hough individuals had a righ o privacy everyone--he press he public
he nominees my colleagues--hough ha I was rying o ask abou aborion in disguise no mater how
many imes I said ruhully and rankly and I quoe
No orge abou aborion To know how you will ace he many unknown quesions ha will conron he
Cour ino he 21s cenury I mus know wheher or no you hink individuals have a righ o privacy
No mater how many imes I insised everyone believed I was asking abou aborion Tha is jus how
powerully he issue dominaes our process
(Mr KOHL assumed he chair)
Mr BIDEN Second in he period beween he Bork and he Thomas nominaions here developed wha
could be called an uninended conspiracy o exremismrsquo beween he righ and he lef o underminehe confirmaion process and quesion he legiimacy o is oucomes
Simply pu he righ could no accep ha any process which resuled in he rejecion o Judge Bork
was air or legiimae Nowihsanding he conemporaneous declaraion o may Republican Senaors
ha he hearings and process or handling he Bork nominaion were air a subsequen myhology has
developed ha claims oherwise
We are old ha he hearings were iled agains Bork bu here were more winesses who esified or
him han appeared in opposiion I have heard his deea blamed on scheduling o he winesses Well
we simply alernaed pro-con pro-con panel afer panel
And he lis o excuses goes on and on I was he camera angle hey said he beard he lighs he
iming--all unair all engaged in by hose who opposed Bork o bring him down
In sum he conservaive wing o he Republican Pary has never acceped he cold hard ac ha he
Senae rejeced Judge Bork because his views came o be well undersood and were considered
unaccepable And because his rejecion o heir core philosophy is inconceivable o he legal righ
hey have been on a hun or villains ever since
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BIDEN RULES
They have atacked he press as in a recen inemperae speech by a conservaive Federal judge
bashing wo New York Times reporers who are among he fines o cover Supreme Cour hearings Bu
mos o all hese movemen conservaives have atacked he confirmaion process isel and he Senae
or exercising is consiuional duies o conduc i
Bu i does no sop here Mr Presiden
A he same ime he lef oo has clohed is rusraion wih is inabiliy o persuade he American public
o he wisdom o is agenda in anger abou he confirmaion process as well
The lef has reused o accep he ac ha when one poliical branch is conrolled by a conservaive
Republican and he oher has is philosophical ulcrum resing on key Souhern Democras who
hold he balance on close voes in he Senae i is ineviable ha he Cour is going o grow more
conservaive Accepable candidaes mus be ound among hose who sraddle his ideological gul
such as Jusices Kennedy and Souer who were approved by a combined oal o 188 o 9 in he Senae
The lef Mr Presiden is rusraed because a conservaive Presiden and a Senae where he ulcrum isheld by conservaive Souhern Democras is no going o nominae a Jusice Brennan who I hink was
a grea Jusice and we should find people o replace him ideologically They reuse o accep realiy Mr
Presiden jus as he righ reuses o accep he realiy o a Bork deea
Bork was deeaed because his views o wha he hough America should become were differen han
hose held by he vas majoriy o Americans and an overwhelming majoriy o Senaors and had no a
whi o do wih wheher or no he had a beard a camera angle an ad by an ouside group or he order
o winesses
So Mr Presiden he confirmaion process has hus become a convenien scapegoa or ideological
advocaes o compeing social visions--advocaes who have no been able o persuade he generally
moderae American public o he wisdom o eiher o eiher o heir views when ramed in he exreme
In effec hen Mr Presiden hese advocaes have joined in an ad hoc alliance he exreme righ and
he exreme lef o undermine public confidence in a process aimed a moderaion--hoping perhaps o
omen a grea social and culural war in which one or he oher will prevail
The hird problem Mr Presiden is he confirmaion process has been ineced by he general meanness
and nasiness ha pervades our poliical process oday While I believe hey played litle or no role in
he oucome he inaccurae elevision ads ha were run agains Judge Borkrsquos confirmaion only auned
increasingly cuting responses rom he righ
The Thomas nominaion included a level o personal biterness ha may be ypical o our modern
poliical campaigns bu is desrucive o any process dependen upon consensus as is he confirmaion
process Afer he nominaion was announced one o he opponens o Judge Thomas ouside he
Senae hreaened o Bork himrsquo--a menacing pledge ha served no purpose And hen as he hearings
were abou o begin he same conservaive group ha produced he inamous Willie Horon ads ran
elevision commercials atacking members o he Judiciary Commitee including mysel wih he inen
o inimidae--and hey so saed--inimidae our review o he nominaion
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I find i ironic Mr Presiden ha we could recognize he cos--i no find he answers--or his nasiness in
he conex o Presidenial elecions bu lack he same insigh wih respec o he confirmaion process
Many o he same voices who have criicized he commitee or no going hard enough afer allegaions
ha Judge Thomas had improper ravel expenses spieully ranserred a whisleblower a EEOC or
was riends wih a proaparheid lobbyis--many o hese criics o our commitee are among he firs obemoan he ac ha he Presidenial campaign o 1992 has been dominaed by quesions o personal
wrong-doing insead o he real issues
We canno have i boh ways
I oo believe ha he Naion would be beter off i he curren campaign was cenered on dispues over
public policy raher han gossip abou marial fideliy and marijuana use Bu I mus say ha he same
is rue abou our review o Supreme Cour nominees he Naion is enriched when we explore heir
jurisprudenial views i is debased when we plow hrough heir privae lives or dir
As wih Presidenial campaigns he press--perhaps because i is easier perhaps because i sells papers--has oo ofen ocused heir coverage o Supreme Cour nominees on such gossip and personal maters
raher han on he subsanial--bu difficul--ask o rying o discern heir philosophy and heir ideology
because i is heir philosophy and heir ideology ha will affec how I am able o live my lie how my
children will be able o live heir lives no wheher or no when hey were 17 years old hey smoked
marijuana or anyhing else
Le me make i clear here ha I am no now speaking o Proessor Hillrsquos allegaions agains Judge
Thomas which were cerainly serious and significan enough o meri he ull invesigaion ha he
commitee conduced boh beore and afer heir public disclosure Raher I am speaking o he
numerous lesser allegaions agains nominees Bork Kennedy Souer and Thomas which he mosexreme commitee criics say we have done oo litle o pursue
Some examples o wha hese criics waned o see us delve ino come o mind Judge Bork had his
video renal records exhumed and sudied or possible renal o pornographic films Judge Souer has
his marial saus quesioned and el obligaed o produce ex-girlriends o esiy o his viriliy Judge
Thomas was assauled by a whispering campaign ha spread unsubsaniaed rumors o abou he
cause o he end o his firs marriage
Each ime he airing o hese charges enraged Republican allies o hese nominees who considered
he charges unair and a violaion o heir righ o privacy And each ime when he commitee--a my
direcion--reused o explore hese awdry rumors he more exreme criics o our process grew more
and more rusraed wih he resuls
This was anoher ension which came o a head during he Thomas nominaion and which exploded
when Proessor Hillrsquos charges were made public
To sum up hen The confirmaion process launched in 1987--an atemp o provide a means or dealing
wih he Reagan-Bush campaign o ransorm he Supreme Cour ideologically a a ime when hose
ideological views lacked public suppor--has been orn asunder The process lacks he sor o broad-
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BIDEN RULES
based suppor ha could make i work and is credibiliy has been slowly eroded by he criicism i has
received rom boh liberal and conservaive ideologues
A legiimae process ha was buil in good aih o ideniy and confirm consensus nominees has been
desroyed by many o he same corrosive influences ha have so devasaed our Presidenial poliics
and our naional dialog on public affairs
Consequenly i is my view ha--paricularly i he realiy o divided governmen during a ime o grea
change a he Cour coninues in he nex adminisraion--uure confirmaions mus be conduced
differenly han he preceding ones The pressures and ensions on he exising process--which
exploded during he Thomas nominaion figh--make a resoraion o wha came beore Judge Thomasrsquo
nominaion--even i i was desirable--a pracical impossibiliy
THE UNIQUE HISTORY OF ELECTION YEAR NOMINATIONS
Having said ha we ace one immediae quesion Can our Supreme Cour nominaion and confirmaion
processes so racked by discord and biterness be repaired in a Presidenial elecion year Hisoryeaches us ha his is exremely unlikely
Some o our Naionrsquos mos biter and heaed confirmaion fighs have come in Presidenial elecion years
The bruising confirmaion figh over Roger Taneyrsquos nominaion in 1836 he Senaersquos reusal o confirm
our nominaions by Presiden Tyler in 1844 he single voe rejecions o nominees Badger and Black
by lameduck Presidens Fillmore and Buchanan in he mid-19h cenury and he narrow approvals o
Jusices Lamar and Fuller in 1888 are jus some examples o hese fighs in he 19h cenury
Overall while only one in our Supreme Cour nominaions has been he subjec o significan
opposiion he figure rises o one ou o wo when such nominaions are aced on in Presidenial
elecion years
In our own cenury here are wo paricularly poignan cases The 1916 confirmaion figh over Louis
D Brandeis one o Americarsquos grea juriss--a figh filled wih mean-spiried ani-Semiic atacks on he
nominee--is an example o how elecion year poliics can pollue Senae consideraion o a disinguished
candidae And he 1968 filibuser agains Abe Forasrsquo nominaion--an assaul ha was launched by 19
Republican Senaors beore Presiden Johnson had even named Foras as his selecion--is similarly well
known by all who ollow his
Indeed many pundis on boh he lef and he righ quesioned our commiteersquos abiliy o airly process
he Bork nominaion--a year beore he 1988 campaign--wihou becoming enangled in Presidenialpoliics While I believe his concern was misplaced and ulimaely disproved i illusraes how ears o
such poliicizaion can undermine confidence in he confirmaion process
Moreover he radiion agains acing on Supreme Cour nominaions in a Presidenial year is paricularly
srong when he vacancy occurs in he summer or all o ha elecion season
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BIDEN RULES
Thus while a ew Jusices have been confirmed in he summer or all o a Presidenial elecion season
such confirmaions are rare--only five imes in our hisory have summer or all confirmaions been
graned wih he laes--he laes--being he Augus 1846 confirmaion o Jusice Rober Grier
In ac no Jusice has ever been confirmed in Sepember or Ocober o an elecion year--he sor o iming
which has become sandard in he modern confirmaion process Indeed in American hisory he onlyatemp o push hrough a Sepember or Ocober confirmaion was he ailed campaign o approve Abe
Forasrsquo nominaion in 1968 I canno believe anyone would wan o repea ha experience in odayrsquos climae
Moreover o he five Jusices who were confirmed in he summer o an elecion year all five were
nominaed or vacancies ha had arisen beore he summer began Indeed Jusice Grierrsquos Augus
confirmaion was or a vacancy on he Cour ha was more han 2 years old as was he July confirmaion
o Jusice Samuel Miller in 1862
Thus more relevan or he siuaion we could be acing in 1922 is his saisic six Supreme Cour
vacancies have occurred in he summer or all o a Presidenial elecion year and never--no once--has
he Senae confirmed a nominee or hese vacancies beore he November elecion
In our o hese six cases--in 1800 1828 1864 and 1956--he Presiden himsel wihheld making a
nominaion unil afer he elecion was held
In boh o he wo insances where he Presiden did insis on naming a nominee under hese circumsances
Edward Bradord in 1952 and Abe Foras in 1968 he Senae reused o confirm hese selecions
Thus as we ener he summer o he Presidenial elecion year i is ime o consider wheher his
unbroken sring o hisorical radiion should be broken In my view wha hisory suppors common
sense dicaes in he case o 1992 Given he unusual rancor ha prevailed in he Thomas nominaion he
need or some serious reevaluaion o he nominaion and confirmaion process and he overall level o
biterness ha sadly inecs our poliical sysem and his Presidenial campaign already i is my view ha
he prospecs or anyhing bu conflagraion wih respec o a Supreme Cour nominaion his year are
remoe a bes
O Presidens Reaganrsquos and Bushrsquos las seven selecions o he Cour wo were no confirmed and wo
more were approved wih he mos voes cas agains hem in he hisory o he Unied Saes o America
We have seen how Mr Presiden in my view poliics has played ar oo large a role in he Reagan-Bush
nominaions o dae One can only imagine ha role becoming overarching i a choice were made his
year assuming a Jusice announced omorrow ha he or she was sepping down
Should a Jusice resign his summer and he Presiden move o name a successor acions ha will occur
jus days beore he Democraic Presidenial Convenion and weeks beore he Republican Convenion
mees a process ha is already in doub in he minds o many will become disrused by all Senae
consideraion o a nominee under hese circumsances is no air o he Presiden o he nominee or o
he Senae isel
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Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i
will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom
boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns
omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should
consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil
afer he November elecion is compleed
The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy
ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way
o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary
Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer
he poliical campaign season is over
I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns
we will have seen in modern imes
I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i
was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be
permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in
he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic
conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion
mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral
o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion
Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as
I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he
Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and
he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is
nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks
In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain
Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise
beween he branches would no be sofened bu raher he prospecs or such compromise would be
naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process
migh be changed in he nex adminisraion wheher i is a Democra or a Republican
I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive
social agenda ha he Congress and he public have rejeced In his way all he paricipans in he
process can be clear well in advance o how I inend o approach any uure nominaions
Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he
nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o
be chairman in he nex adminisraion
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BIDEN RULES
I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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BIDEN RULES
I was a Senae conrolled by progressive Republicans and Democras ha confirmed hree o Presiden
Hooverrsquos our nominees or he Cour and a Democraic Senae reviewed and approved Eisenhower
nominees Ye in hese previous periods o divided Governmen Mr Presiden indeed in some
periods where a Presiden and he Senae shared he same pary Presidens commonly have aken
he Consiuion a is word and asked or he Senaersquos advice--advice--as well as is consen These
Presidens have consuled wih he Senae abou heir choices or he Cour andor chose nominees
wih balanced or diverse ideologies Thus he conservaive Republican Hoover named conservaive
Chie Jusice Charles Evan Hughes bu also named a moderae Owen Robers and a liberal Benjamin
Cardoza he later Benjamin Cardoza afer heaed execuive-Senae consulaions
Similarly Presiden Eisenhowerrsquos choices or he Cour included conservaive John Harlan and Charles
Whitaker moderae Poter Sewar and liberals Earl Warren and William Brennan Even Presiden Nixon
who showed no relucance o ake ull advanage o Presidenial prerogaives balanced his choices o
conservaives Warren Burger and William Rehnquis wih hose o moderae Republican Harry Blackmun
and conservaive Democra Lewis Powell
This o course has no been he model ha Presidens Reagan and Bush have ollowed Indeed even
lacking he broad suppor or heir vision o he Cour which Presidens Washingon and Adams Lincoln
and Gran and Roosevel and Truman had Presidens Reagan and Bush have ried o recas he Cour in
heir ideological image as hese Presidens did
Pu anoher way This is no he firs ime ha a andem o Presidens have sough o remake he Supreme
Cour nor is i he firs ime ha divided Governmen has had o fill a number o seas in ha body
Bu i is he firs ime ha boh have been atemped simulaneously and ha more han anyhing else
has been a he roo o he curren conroversy surrounding he selecion o he Supreme Cour Jusices
I was o cope wih his sress a sress creaed by he decision o Presidens Reagan and Bush o atemp
o move he Cour ideologically ino a radical new direcion which his counry does no suppor i was
o cope wih his sress ha he modern confirmaion process was creaed And on his poin here
should be no doub and no uncerainy
The use ha Presidens Reagan and Bush made o he Supreme Cour nominaing process in a period
o divided Governmen is wihou parallel in our Naionrsquos hisory I is his power grab ha has unleashed
he powerul and diverse orces ha have ravaged he confirmaion process I he American people are
dissaisfied wih where hey find he process oday hey mus undersand where he discord ha has
come o characerize i began Wih Presidens Reagan and Bush and heir decision o cede power in henominaing process o he radical ligh wihin heir own adminisraion
I was in he ace o his unprecedened challenge o he Supreme Courrsquos selecion process ha we in
he Senae developed an unprecedened confirmaion process The cenerpiece o his new process was
a rank recogniion o he legiimacy o Senae consideraion o a nomineersquos judicial philosophy as par o
he confirmaion review
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BIDEN RULES
I ask unanimous consen a his poin ha a previous speech I have made on he Senaersquos righ o look a
and obligaion o look a he ideology o he nominees be prined in he Record
[removed previous esimony insered ino he record]
Mr BIDEN Mr Presiden a he ime I firs se orh his noion during he Bork confirmaion debae i was
a widely conroversial noion ha is ha we as well as he Presiden had a righ o look a ideology Ye
scholarly works reaffirmed by he recen aricles o Pro David Srauss and Cass Sunsein have always
ound a solid basis or his view in he inenions o our Framers and in he hisory o our Naion
In my view he debae over he Senaersquos review o ideology has been ruiul We have quashed he myh
ha he Senae mus deer o a Presidenrsquos choice o a Supreme Cour Jusice he men and women a he
apex o he independen hird branch o Governmen As he Senae properly does or nominees in he
execuive branch he role o he Senae as a vial parner in reviewing Supreme Cour nominaions has
been enhanced And he debae over his role caused even hose who were iniially skepical like Pro
Henry Monaghan who oulined he grounds or his conversion in a 1988 aricle in he Harvard Law Review
o join in he broad consensus over he propriey o more acive Senae paricipaion in he process
More undamenally Mr Presiden he serious and proound debae ha he Bork nominaion sparked
was among he mos imporan naional discussions abou our Consiuion is meaning and he
direcion o our Supreme Cour in his cenury
Beore he Bork confirmaion figh he legacy o he Warren cour was seen as enuous by scholars and
was ill suppored by he public The legal righ hough ha judicial acivism was a rallying cry ha would
move America agains he Courrsquos projecion o proecion o personal reedoms is one personone voe
docrine and oher progressive decisions ha he legal righ hough had no popular suppor and less
legal oundaion
And he legal lef prior o he Bork figh eared ha he righ migh be correc in is assessmen o
popular opinion ha is ha he warren cour and is major decisions were no popularly suppored Bu
he public reacion o Judge Borkrsquos views is rejecion o he righrsquos legal philosophy and judicial noions
proved jus he opposie
And while some aspecs o he Warren Cour decisions remain under assaul paricularly in he area o
criminal law ohers have been irrevocably secured in he hears and minds o mos Americans such as
he Courrsquos recogniion o he righ o privacy a righ ha i you recall Mr Presiden prior o he Bork
figh he ideological righ in his counry hough was no suppored by Americans
This could no have been said beore he Bork confirmaion figh And ye i can be saely proclaimed
oday ha Americans--Americans--srongly suppor he righ o privacy and find ha here is such a
righ proeced in he Consiuion Nor do I limi he success o his process o he Bork rejecion only I
am equally saisfied albei or differen reasons as o how he process uncioned in approving Jusices
Kennedy and Souer
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BIDEN RULES
As I said when I suppored heir confirmaions neiher man is one whom I would have chosen had I been
Presiden Bu each reflecs a balanced selecion a nonideological conservaive ha sands beween he
Whie House philosophy and he Senae
I migh jus noe parenheically in he decision yeserday on school prayer or prayer beore
convocaions in public schools Jusices Souer and Kennedy ook a posiion diamerically opposed oha ha has been proffered by his adminisraion and he previous one or he pas 11 years
While I have disagreed wih some o he decisions by each o hese wo Juriss I know ha Presiden
Bush mus say he same hing Tha he disagrees wih some o he decisions o he wo men Kennedy
and Souer Bu I offer hem as examples Mr Presiden ha boh men have issued some opinions ha
I sharply rejec Bu in a period o divided Governmen boh rom he Cour o compromise candidaes
who are appropriae or consideraion and whose confirmaions I suppored
In my view he conemporary confirmaion process uncioned well in rejecing Judge Bork and in
approving Jusices Kennedy and Souer And ye sadly even in so succeeding one could see wihin he
process he seeds o an explosion ha was o come wih he Thomas nominaion and he desrucive
orces ha were going o ear i apar
As I said earlier he roo o he curren collapse o he confirmaion process is he adminisraionrsquos
campaign o make he Supreme Cour an agen o an ulrarigh conservaive social agenda which lacks
suppor in he Congress and in he counry
I would jus poin ou again parenheically Mr Presiden ha he enire social agenda o he Reagan
adminisraion has ye o be able o gain a majoriy suppor in he US Senae or he US House o
Represenaives or among he American people over he pas 11 years So ailing he abiliy o do ha boh
Presidens have concluded and did conclude ha he avenue o ha change was o remake he Cour
In describing how he reacors o differen orces and acions have brough abou he difficuly we now
have o ace I do no wan anybody o lose sigh o he ac ha i is he adminisraionrsquos nominaion
agenda ha is he roo cause o his dilemma Tha is i you will he original sin which has creaed all o
he problems ha plague he process oday The adminisraionrsquos desire o placae he righwing o is
pary which is driven by a single issue--overurning Roe versus Wade
To he members o his Republican acion no mere conservaive such as Jusice OrsquoConnor or Jusice
Powell is sae o use he word hey ofen use The adminisraion has urged us o reach or a Scalia
a Bork a Thomas Bu i his is he original sin behind odayrsquos woes i is no he only cause o he
confirmaion deadlock And here are hree consequences o he Reagan-Bush nominaion sraegy ha
have conribued o he problem
Firs Democras and moderae Republicans have placed i ino he hands o he Republican righ by
acceping Roe as he divining rod in reverse making a nomineersquos views or reusal o sae his views on
his quesion he overriding concern in he confirmaion process
Ye in enjoying he righ o permi he single issue o dominae he debae he cener and he lef
have los sigh o he ac ha nominees are chosen by Republicans ulraconservaives They end o
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BIDEN RULES
embrace oher consiuional and jurisprudenial views unrelaed o aborion bu equally a he ar end
o he specrum
To pu i anoher way he cener and he lef which won such broad public suppor or he posiion
agains Judge Borkrsquos nominaion have allowed hemselves o be divided as single-issue paricipans
This has given rise o even more rusraion abou he process rom boh paricipans and observers and
was one cause or he schism ha emerged in he Thomas confirmaion debae Moreover he ocus on
Roe prevens he commitee rom exploring many legiimae issues in our hearing because quesions
abou he nominees on many maters rom he cuting-edge issue o he righ o privacy o he age-old
legal docrine o sare decisis are immediaely assumed by all hose who observed he process o be
cover quesions abou aborion when hey have nohing o do wih aborion
Among he mos rusraing aspecs o he Souer and Thomas hearings was ha when I ried o quesion
he nominees on wheher hey hough individuals had a righ o privacy everyone--he press he public
he nominees my colleagues--hough ha I was rying o ask abou aborion in disguise no mater how
many imes I said ruhully and rankly and I quoe
No orge abou aborion To know how you will ace he many unknown quesions ha will conron he
Cour ino he 21s cenury I mus know wheher or no you hink individuals have a righ o privacy
No mater how many imes I insised everyone believed I was asking abou aborion Tha is jus how
powerully he issue dominaes our process
(Mr KOHL assumed he chair)
Mr BIDEN Second in he period beween he Bork and he Thomas nominaions here developed wha
could be called an uninended conspiracy o exremismrsquo beween he righ and he lef o underminehe confirmaion process and quesion he legiimacy o is oucomes
Simply pu he righ could no accep ha any process which resuled in he rejecion o Judge Bork
was air or legiimae Nowihsanding he conemporaneous declaraion o may Republican Senaors
ha he hearings and process or handling he Bork nominaion were air a subsequen myhology has
developed ha claims oherwise
We are old ha he hearings were iled agains Bork bu here were more winesses who esified or
him han appeared in opposiion I have heard his deea blamed on scheduling o he winesses Well
we simply alernaed pro-con pro-con panel afer panel
And he lis o excuses goes on and on I was he camera angle hey said he beard he lighs he
iming--all unair all engaged in by hose who opposed Bork o bring him down
In sum he conservaive wing o he Republican Pary has never acceped he cold hard ac ha he
Senae rejeced Judge Bork because his views came o be well undersood and were considered
unaccepable And because his rejecion o heir core philosophy is inconceivable o he legal righ
hey have been on a hun or villains ever since
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BIDEN RULES
They have atacked he press as in a recen inemperae speech by a conservaive Federal judge
bashing wo New York Times reporers who are among he fines o cover Supreme Cour hearings Bu
mos o all hese movemen conservaives have atacked he confirmaion process isel and he Senae
or exercising is consiuional duies o conduc i
Bu i does no sop here Mr Presiden
A he same ime he lef oo has clohed is rusraion wih is inabiliy o persuade he American public
o he wisdom o is agenda in anger abou he confirmaion process as well
The lef has reused o accep he ac ha when one poliical branch is conrolled by a conservaive
Republican and he oher has is philosophical ulcrum resing on key Souhern Democras who
hold he balance on close voes in he Senae i is ineviable ha he Cour is going o grow more
conservaive Accepable candidaes mus be ound among hose who sraddle his ideological gul
such as Jusices Kennedy and Souer who were approved by a combined oal o 188 o 9 in he Senae
The lef Mr Presiden is rusraed because a conservaive Presiden and a Senae where he ulcrum isheld by conservaive Souhern Democras is no going o nominae a Jusice Brennan who I hink was
a grea Jusice and we should find people o replace him ideologically They reuse o accep realiy Mr
Presiden jus as he righ reuses o accep he realiy o a Bork deea
Bork was deeaed because his views o wha he hough America should become were differen han
hose held by he vas majoriy o Americans and an overwhelming majoriy o Senaors and had no a
whi o do wih wheher or no he had a beard a camera angle an ad by an ouside group or he order
o winesses
So Mr Presiden he confirmaion process has hus become a convenien scapegoa or ideological
advocaes o compeing social visions--advocaes who have no been able o persuade he generally
moderae American public o he wisdom o eiher o eiher o heir views when ramed in he exreme
In effec hen Mr Presiden hese advocaes have joined in an ad hoc alliance he exreme righ and
he exreme lef o undermine public confidence in a process aimed a moderaion--hoping perhaps o
omen a grea social and culural war in which one or he oher will prevail
The hird problem Mr Presiden is he confirmaion process has been ineced by he general meanness
and nasiness ha pervades our poliical process oday While I believe hey played litle or no role in
he oucome he inaccurae elevision ads ha were run agains Judge Borkrsquos confirmaion only auned
increasingly cuting responses rom he righ
The Thomas nominaion included a level o personal biterness ha may be ypical o our modern
poliical campaigns bu is desrucive o any process dependen upon consensus as is he confirmaion
process Afer he nominaion was announced one o he opponens o Judge Thomas ouside he
Senae hreaened o Bork himrsquo--a menacing pledge ha served no purpose And hen as he hearings
were abou o begin he same conservaive group ha produced he inamous Willie Horon ads ran
elevision commercials atacking members o he Judiciary Commitee including mysel wih he inen
o inimidae--and hey so saed--inimidae our review o he nominaion
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I find i ironic Mr Presiden ha we could recognize he cos--i no find he answers--or his nasiness in
he conex o Presidenial elecions bu lack he same insigh wih respec o he confirmaion process
Many o he same voices who have criicized he commitee or no going hard enough afer allegaions
ha Judge Thomas had improper ravel expenses spieully ranserred a whisleblower a EEOC or
was riends wih a proaparheid lobbyis--many o hese criics o our commitee are among he firs obemoan he ac ha he Presidenial campaign o 1992 has been dominaed by quesions o personal
wrong-doing insead o he real issues
We canno have i boh ways
I oo believe ha he Naion would be beter off i he curren campaign was cenered on dispues over
public policy raher han gossip abou marial fideliy and marijuana use Bu I mus say ha he same
is rue abou our review o Supreme Cour nominees he Naion is enriched when we explore heir
jurisprudenial views i is debased when we plow hrough heir privae lives or dir
As wih Presidenial campaigns he press--perhaps because i is easier perhaps because i sells papers--has oo ofen ocused heir coverage o Supreme Cour nominees on such gossip and personal maters
raher han on he subsanial--bu difficul--ask o rying o discern heir philosophy and heir ideology
because i is heir philosophy and heir ideology ha will affec how I am able o live my lie how my
children will be able o live heir lives no wheher or no when hey were 17 years old hey smoked
marijuana or anyhing else
Le me make i clear here ha I am no now speaking o Proessor Hillrsquos allegaions agains Judge
Thomas which were cerainly serious and significan enough o meri he ull invesigaion ha he
commitee conduced boh beore and afer heir public disclosure Raher I am speaking o he
numerous lesser allegaions agains nominees Bork Kennedy Souer and Thomas which he mosexreme commitee criics say we have done oo litle o pursue
Some examples o wha hese criics waned o see us delve ino come o mind Judge Bork had his
video renal records exhumed and sudied or possible renal o pornographic films Judge Souer has
his marial saus quesioned and el obligaed o produce ex-girlriends o esiy o his viriliy Judge
Thomas was assauled by a whispering campaign ha spread unsubsaniaed rumors o abou he
cause o he end o his firs marriage
Each ime he airing o hese charges enraged Republican allies o hese nominees who considered
he charges unair and a violaion o heir righ o privacy And each ime when he commitee--a my
direcion--reused o explore hese awdry rumors he more exreme criics o our process grew more
and more rusraed wih he resuls
This was anoher ension which came o a head during he Thomas nominaion and which exploded
when Proessor Hillrsquos charges were made public
To sum up hen The confirmaion process launched in 1987--an atemp o provide a means or dealing
wih he Reagan-Bush campaign o ransorm he Supreme Cour ideologically a a ime when hose
ideological views lacked public suppor--has been orn asunder The process lacks he sor o broad-
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BIDEN RULES
based suppor ha could make i work and is credibiliy has been slowly eroded by he criicism i has
received rom boh liberal and conservaive ideologues
A legiimae process ha was buil in good aih o ideniy and confirm consensus nominees has been
desroyed by many o he same corrosive influences ha have so devasaed our Presidenial poliics
and our naional dialog on public affairs
Consequenly i is my view ha--paricularly i he realiy o divided governmen during a ime o grea
change a he Cour coninues in he nex adminisraion--uure confirmaions mus be conduced
differenly han he preceding ones The pressures and ensions on he exising process--which
exploded during he Thomas nominaion figh--make a resoraion o wha came beore Judge Thomasrsquo
nominaion--even i i was desirable--a pracical impossibiliy
THE UNIQUE HISTORY OF ELECTION YEAR NOMINATIONS
Having said ha we ace one immediae quesion Can our Supreme Cour nominaion and confirmaion
processes so racked by discord and biterness be repaired in a Presidenial elecion year Hisoryeaches us ha his is exremely unlikely
Some o our Naionrsquos mos biter and heaed confirmaion fighs have come in Presidenial elecion years
The bruising confirmaion figh over Roger Taneyrsquos nominaion in 1836 he Senaersquos reusal o confirm
our nominaions by Presiden Tyler in 1844 he single voe rejecions o nominees Badger and Black
by lameduck Presidens Fillmore and Buchanan in he mid-19h cenury and he narrow approvals o
Jusices Lamar and Fuller in 1888 are jus some examples o hese fighs in he 19h cenury
Overall while only one in our Supreme Cour nominaions has been he subjec o significan
opposiion he figure rises o one ou o wo when such nominaions are aced on in Presidenial
elecion years
In our own cenury here are wo paricularly poignan cases The 1916 confirmaion figh over Louis
D Brandeis one o Americarsquos grea juriss--a figh filled wih mean-spiried ani-Semiic atacks on he
nominee--is an example o how elecion year poliics can pollue Senae consideraion o a disinguished
candidae And he 1968 filibuser agains Abe Forasrsquo nominaion--an assaul ha was launched by 19
Republican Senaors beore Presiden Johnson had even named Foras as his selecion--is similarly well
known by all who ollow his
Indeed many pundis on boh he lef and he righ quesioned our commiteersquos abiliy o airly process
he Bork nominaion--a year beore he 1988 campaign--wihou becoming enangled in Presidenialpoliics While I believe his concern was misplaced and ulimaely disproved i illusraes how ears o
such poliicizaion can undermine confidence in he confirmaion process
Moreover he radiion agains acing on Supreme Cour nominaions in a Presidenial year is paricularly
srong when he vacancy occurs in he summer or all o ha elecion season
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BIDEN RULES
Thus while a ew Jusices have been confirmed in he summer or all o a Presidenial elecion season
such confirmaions are rare--only five imes in our hisory have summer or all confirmaions been
graned wih he laes--he laes--being he Augus 1846 confirmaion o Jusice Rober Grier
In ac no Jusice has ever been confirmed in Sepember or Ocober o an elecion year--he sor o iming
which has become sandard in he modern confirmaion process Indeed in American hisory he onlyatemp o push hrough a Sepember or Ocober confirmaion was he ailed campaign o approve Abe
Forasrsquo nominaion in 1968 I canno believe anyone would wan o repea ha experience in odayrsquos climae
Moreover o he five Jusices who were confirmed in he summer o an elecion year all five were
nominaed or vacancies ha had arisen beore he summer began Indeed Jusice Grierrsquos Augus
confirmaion was or a vacancy on he Cour ha was more han 2 years old as was he July confirmaion
o Jusice Samuel Miller in 1862
Thus more relevan or he siuaion we could be acing in 1922 is his saisic six Supreme Cour
vacancies have occurred in he summer or all o a Presidenial elecion year and never--no once--has
he Senae confirmed a nominee or hese vacancies beore he November elecion
In our o hese six cases--in 1800 1828 1864 and 1956--he Presiden himsel wihheld making a
nominaion unil afer he elecion was held
In boh o he wo insances where he Presiden did insis on naming a nominee under hese circumsances
Edward Bradord in 1952 and Abe Foras in 1968 he Senae reused o confirm hese selecions
Thus as we ener he summer o he Presidenial elecion year i is ime o consider wheher his
unbroken sring o hisorical radiion should be broken In my view wha hisory suppors common
sense dicaes in he case o 1992 Given he unusual rancor ha prevailed in he Thomas nominaion he
need or some serious reevaluaion o he nominaion and confirmaion process and he overall level o
biterness ha sadly inecs our poliical sysem and his Presidenial campaign already i is my view ha
he prospecs or anyhing bu conflagraion wih respec o a Supreme Cour nominaion his year are
remoe a bes
O Presidens Reaganrsquos and Bushrsquos las seven selecions o he Cour wo were no confirmed and wo
more were approved wih he mos voes cas agains hem in he hisory o he Unied Saes o America
We have seen how Mr Presiden in my view poliics has played ar oo large a role in he Reagan-Bush
nominaions o dae One can only imagine ha role becoming overarching i a choice were made his
year assuming a Jusice announced omorrow ha he or she was sepping down
Should a Jusice resign his summer and he Presiden move o name a successor acions ha will occur
jus days beore he Democraic Presidenial Convenion and weeks beore he Republican Convenion
mees a process ha is already in doub in he minds o many will become disrused by all Senae
consideraion o a nominee under hese circumsances is no air o he Presiden o he nominee or o
he Senae isel
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BIDEN RULES
Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i
will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom
boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns
omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should
consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil
afer he November elecion is compleed
The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy
ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way
o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary
Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer
he poliical campaign season is over
I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns
we will have seen in modern imes
I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i
was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be
permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in
he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic
conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion
mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral
o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion
Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as
I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he
Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and
he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is
nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks
In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain
Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise
beween he branches would no be sofened bu raher he prospecs or such compromise would be
naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process
migh be changed in he nex adminisraion wheher i is a Democra or a Republican
I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive
social agenda ha he Congress and he public have rejeced In his way all he paricipans in he
process can be clear well in advance o how I inend o approach any uure nominaions
Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he
nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o
be chairman in he nex adminisraion
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BIDEN RULES
I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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BIDEN RULES
I ask unanimous consen a his poin ha a previous speech I have made on he Senaersquos righ o look a
and obligaion o look a he ideology o he nominees be prined in he Record
[removed previous esimony insered ino he record]
Mr BIDEN Mr Presiden a he ime I firs se orh his noion during he Bork confirmaion debae i was
a widely conroversial noion ha is ha we as well as he Presiden had a righ o look a ideology Ye
scholarly works reaffirmed by he recen aricles o Pro David Srauss and Cass Sunsein have always
ound a solid basis or his view in he inenions o our Framers and in he hisory o our Naion
In my view he debae over he Senaersquos review o ideology has been ruiul We have quashed he myh
ha he Senae mus deer o a Presidenrsquos choice o a Supreme Cour Jusice he men and women a he
apex o he independen hird branch o Governmen As he Senae properly does or nominees in he
execuive branch he role o he Senae as a vial parner in reviewing Supreme Cour nominaions has
been enhanced And he debae over his role caused even hose who were iniially skepical like Pro
Henry Monaghan who oulined he grounds or his conversion in a 1988 aricle in he Harvard Law Review
o join in he broad consensus over he propriey o more acive Senae paricipaion in he process
More undamenally Mr Presiden he serious and proound debae ha he Bork nominaion sparked
was among he mos imporan naional discussions abou our Consiuion is meaning and he
direcion o our Supreme Cour in his cenury
Beore he Bork confirmaion figh he legacy o he Warren cour was seen as enuous by scholars and
was ill suppored by he public The legal righ hough ha judicial acivism was a rallying cry ha would
move America agains he Courrsquos projecion o proecion o personal reedoms is one personone voe
docrine and oher progressive decisions ha he legal righ hough had no popular suppor and less
legal oundaion
And he legal lef prior o he Bork figh eared ha he righ migh be correc in is assessmen o
popular opinion ha is ha he warren cour and is major decisions were no popularly suppored Bu
he public reacion o Judge Borkrsquos views is rejecion o he righrsquos legal philosophy and judicial noions
proved jus he opposie
And while some aspecs o he Warren Cour decisions remain under assaul paricularly in he area o
criminal law ohers have been irrevocably secured in he hears and minds o mos Americans such as
he Courrsquos recogniion o he righ o privacy a righ ha i you recall Mr Presiden prior o he Bork
figh he ideological righ in his counry hough was no suppored by Americans
This could no have been said beore he Bork confirmaion figh And ye i can be saely proclaimed
oday ha Americans--Americans--srongly suppor he righ o privacy and find ha here is such a
righ proeced in he Consiuion Nor do I limi he success o his process o he Bork rejecion only I
am equally saisfied albei or differen reasons as o how he process uncioned in approving Jusices
Kennedy and Souer
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BIDEN RULES
As I said when I suppored heir confirmaions neiher man is one whom I would have chosen had I been
Presiden Bu each reflecs a balanced selecion a nonideological conservaive ha sands beween he
Whie House philosophy and he Senae
I migh jus noe parenheically in he decision yeserday on school prayer or prayer beore
convocaions in public schools Jusices Souer and Kennedy ook a posiion diamerically opposed oha ha has been proffered by his adminisraion and he previous one or he pas 11 years
While I have disagreed wih some o he decisions by each o hese wo Juriss I know ha Presiden
Bush mus say he same hing Tha he disagrees wih some o he decisions o he wo men Kennedy
and Souer Bu I offer hem as examples Mr Presiden ha boh men have issued some opinions ha
I sharply rejec Bu in a period o divided Governmen boh rom he Cour o compromise candidaes
who are appropriae or consideraion and whose confirmaions I suppored
In my view he conemporary confirmaion process uncioned well in rejecing Judge Bork and in
approving Jusices Kennedy and Souer And ye sadly even in so succeeding one could see wihin he
process he seeds o an explosion ha was o come wih he Thomas nominaion and he desrucive
orces ha were going o ear i apar
As I said earlier he roo o he curren collapse o he confirmaion process is he adminisraionrsquos
campaign o make he Supreme Cour an agen o an ulrarigh conservaive social agenda which lacks
suppor in he Congress and in he counry
I would jus poin ou again parenheically Mr Presiden ha he enire social agenda o he Reagan
adminisraion has ye o be able o gain a majoriy suppor in he US Senae or he US House o
Represenaives or among he American people over he pas 11 years So ailing he abiliy o do ha boh
Presidens have concluded and did conclude ha he avenue o ha change was o remake he Cour
In describing how he reacors o differen orces and acions have brough abou he difficuly we now
have o ace I do no wan anybody o lose sigh o he ac ha i is he adminisraionrsquos nominaion
agenda ha is he roo cause o his dilemma Tha is i you will he original sin which has creaed all o
he problems ha plague he process oday The adminisraionrsquos desire o placae he righwing o is
pary which is driven by a single issue--overurning Roe versus Wade
To he members o his Republican acion no mere conservaive such as Jusice OrsquoConnor or Jusice
Powell is sae o use he word hey ofen use The adminisraion has urged us o reach or a Scalia
a Bork a Thomas Bu i his is he original sin behind odayrsquos woes i is no he only cause o he
confirmaion deadlock And here are hree consequences o he Reagan-Bush nominaion sraegy ha
have conribued o he problem
Firs Democras and moderae Republicans have placed i ino he hands o he Republican righ by
acceping Roe as he divining rod in reverse making a nomineersquos views or reusal o sae his views on
his quesion he overriding concern in he confirmaion process
Ye in enjoying he righ o permi he single issue o dominae he debae he cener and he lef
have los sigh o he ac ha nominees are chosen by Republicans ulraconservaives They end o
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BIDEN RULES
embrace oher consiuional and jurisprudenial views unrelaed o aborion bu equally a he ar end
o he specrum
To pu i anoher way he cener and he lef which won such broad public suppor or he posiion
agains Judge Borkrsquos nominaion have allowed hemselves o be divided as single-issue paricipans
This has given rise o even more rusraion abou he process rom boh paricipans and observers and
was one cause or he schism ha emerged in he Thomas confirmaion debae Moreover he ocus on
Roe prevens he commitee rom exploring many legiimae issues in our hearing because quesions
abou he nominees on many maters rom he cuting-edge issue o he righ o privacy o he age-old
legal docrine o sare decisis are immediaely assumed by all hose who observed he process o be
cover quesions abou aborion when hey have nohing o do wih aborion
Among he mos rusraing aspecs o he Souer and Thomas hearings was ha when I ried o quesion
he nominees on wheher hey hough individuals had a righ o privacy everyone--he press he public
he nominees my colleagues--hough ha I was rying o ask abou aborion in disguise no mater how
many imes I said ruhully and rankly and I quoe
No orge abou aborion To know how you will ace he many unknown quesions ha will conron he
Cour ino he 21s cenury I mus know wheher or no you hink individuals have a righ o privacy
No mater how many imes I insised everyone believed I was asking abou aborion Tha is jus how
powerully he issue dominaes our process
(Mr KOHL assumed he chair)
Mr BIDEN Second in he period beween he Bork and he Thomas nominaions here developed wha
could be called an uninended conspiracy o exremismrsquo beween he righ and he lef o underminehe confirmaion process and quesion he legiimacy o is oucomes
Simply pu he righ could no accep ha any process which resuled in he rejecion o Judge Bork
was air or legiimae Nowihsanding he conemporaneous declaraion o may Republican Senaors
ha he hearings and process or handling he Bork nominaion were air a subsequen myhology has
developed ha claims oherwise
We are old ha he hearings were iled agains Bork bu here were more winesses who esified or
him han appeared in opposiion I have heard his deea blamed on scheduling o he winesses Well
we simply alernaed pro-con pro-con panel afer panel
And he lis o excuses goes on and on I was he camera angle hey said he beard he lighs he
iming--all unair all engaged in by hose who opposed Bork o bring him down
In sum he conservaive wing o he Republican Pary has never acceped he cold hard ac ha he
Senae rejeced Judge Bork because his views came o be well undersood and were considered
unaccepable And because his rejecion o heir core philosophy is inconceivable o he legal righ
hey have been on a hun or villains ever since
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BIDEN RULES
They have atacked he press as in a recen inemperae speech by a conservaive Federal judge
bashing wo New York Times reporers who are among he fines o cover Supreme Cour hearings Bu
mos o all hese movemen conservaives have atacked he confirmaion process isel and he Senae
or exercising is consiuional duies o conduc i
Bu i does no sop here Mr Presiden
A he same ime he lef oo has clohed is rusraion wih is inabiliy o persuade he American public
o he wisdom o is agenda in anger abou he confirmaion process as well
The lef has reused o accep he ac ha when one poliical branch is conrolled by a conservaive
Republican and he oher has is philosophical ulcrum resing on key Souhern Democras who
hold he balance on close voes in he Senae i is ineviable ha he Cour is going o grow more
conservaive Accepable candidaes mus be ound among hose who sraddle his ideological gul
such as Jusices Kennedy and Souer who were approved by a combined oal o 188 o 9 in he Senae
The lef Mr Presiden is rusraed because a conservaive Presiden and a Senae where he ulcrum isheld by conservaive Souhern Democras is no going o nominae a Jusice Brennan who I hink was
a grea Jusice and we should find people o replace him ideologically They reuse o accep realiy Mr
Presiden jus as he righ reuses o accep he realiy o a Bork deea
Bork was deeaed because his views o wha he hough America should become were differen han
hose held by he vas majoriy o Americans and an overwhelming majoriy o Senaors and had no a
whi o do wih wheher or no he had a beard a camera angle an ad by an ouside group or he order
o winesses
So Mr Presiden he confirmaion process has hus become a convenien scapegoa or ideological
advocaes o compeing social visions--advocaes who have no been able o persuade he generally
moderae American public o he wisdom o eiher o eiher o heir views when ramed in he exreme
In effec hen Mr Presiden hese advocaes have joined in an ad hoc alliance he exreme righ and
he exreme lef o undermine public confidence in a process aimed a moderaion--hoping perhaps o
omen a grea social and culural war in which one or he oher will prevail
The hird problem Mr Presiden is he confirmaion process has been ineced by he general meanness
and nasiness ha pervades our poliical process oday While I believe hey played litle or no role in
he oucome he inaccurae elevision ads ha were run agains Judge Borkrsquos confirmaion only auned
increasingly cuting responses rom he righ
The Thomas nominaion included a level o personal biterness ha may be ypical o our modern
poliical campaigns bu is desrucive o any process dependen upon consensus as is he confirmaion
process Afer he nominaion was announced one o he opponens o Judge Thomas ouside he
Senae hreaened o Bork himrsquo--a menacing pledge ha served no purpose And hen as he hearings
were abou o begin he same conservaive group ha produced he inamous Willie Horon ads ran
elevision commercials atacking members o he Judiciary Commitee including mysel wih he inen
o inimidae--and hey so saed--inimidae our review o he nominaion
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BIDEN RULES
I find i ironic Mr Presiden ha we could recognize he cos--i no find he answers--or his nasiness in
he conex o Presidenial elecions bu lack he same insigh wih respec o he confirmaion process
Many o he same voices who have criicized he commitee or no going hard enough afer allegaions
ha Judge Thomas had improper ravel expenses spieully ranserred a whisleblower a EEOC or
was riends wih a proaparheid lobbyis--many o hese criics o our commitee are among he firs obemoan he ac ha he Presidenial campaign o 1992 has been dominaed by quesions o personal
wrong-doing insead o he real issues
We canno have i boh ways
I oo believe ha he Naion would be beter off i he curren campaign was cenered on dispues over
public policy raher han gossip abou marial fideliy and marijuana use Bu I mus say ha he same
is rue abou our review o Supreme Cour nominees he Naion is enriched when we explore heir
jurisprudenial views i is debased when we plow hrough heir privae lives or dir
As wih Presidenial campaigns he press--perhaps because i is easier perhaps because i sells papers--has oo ofen ocused heir coverage o Supreme Cour nominees on such gossip and personal maters
raher han on he subsanial--bu difficul--ask o rying o discern heir philosophy and heir ideology
because i is heir philosophy and heir ideology ha will affec how I am able o live my lie how my
children will be able o live heir lives no wheher or no when hey were 17 years old hey smoked
marijuana or anyhing else
Le me make i clear here ha I am no now speaking o Proessor Hillrsquos allegaions agains Judge
Thomas which were cerainly serious and significan enough o meri he ull invesigaion ha he
commitee conduced boh beore and afer heir public disclosure Raher I am speaking o he
numerous lesser allegaions agains nominees Bork Kennedy Souer and Thomas which he mosexreme commitee criics say we have done oo litle o pursue
Some examples o wha hese criics waned o see us delve ino come o mind Judge Bork had his
video renal records exhumed and sudied or possible renal o pornographic films Judge Souer has
his marial saus quesioned and el obligaed o produce ex-girlriends o esiy o his viriliy Judge
Thomas was assauled by a whispering campaign ha spread unsubsaniaed rumors o abou he
cause o he end o his firs marriage
Each ime he airing o hese charges enraged Republican allies o hese nominees who considered
he charges unair and a violaion o heir righ o privacy And each ime when he commitee--a my
direcion--reused o explore hese awdry rumors he more exreme criics o our process grew more
and more rusraed wih he resuls
This was anoher ension which came o a head during he Thomas nominaion and which exploded
when Proessor Hillrsquos charges were made public
To sum up hen The confirmaion process launched in 1987--an atemp o provide a means or dealing
wih he Reagan-Bush campaign o ransorm he Supreme Cour ideologically a a ime when hose
ideological views lacked public suppor--has been orn asunder The process lacks he sor o broad-
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BIDEN RULES
based suppor ha could make i work and is credibiliy has been slowly eroded by he criicism i has
received rom boh liberal and conservaive ideologues
A legiimae process ha was buil in good aih o ideniy and confirm consensus nominees has been
desroyed by many o he same corrosive influences ha have so devasaed our Presidenial poliics
and our naional dialog on public affairs
Consequenly i is my view ha--paricularly i he realiy o divided governmen during a ime o grea
change a he Cour coninues in he nex adminisraion--uure confirmaions mus be conduced
differenly han he preceding ones The pressures and ensions on he exising process--which
exploded during he Thomas nominaion figh--make a resoraion o wha came beore Judge Thomasrsquo
nominaion--even i i was desirable--a pracical impossibiliy
THE UNIQUE HISTORY OF ELECTION YEAR NOMINATIONS
Having said ha we ace one immediae quesion Can our Supreme Cour nominaion and confirmaion
processes so racked by discord and biterness be repaired in a Presidenial elecion year Hisoryeaches us ha his is exremely unlikely
Some o our Naionrsquos mos biter and heaed confirmaion fighs have come in Presidenial elecion years
The bruising confirmaion figh over Roger Taneyrsquos nominaion in 1836 he Senaersquos reusal o confirm
our nominaions by Presiden Tyler in 1844 he single voe rejecions o nominees Badger and Black
by lameduck Presidens Fillmore and Buchanan in he mid-19h cenury and he narrow approvals o
Jusices Lamar and Fuller in 1888 are jus some examples o hese fighs in he 19h cenury
Overall while only one in our Supreme Cour nominaions has been he subjec o significan
opposiion he figure rises o one ou o wo when such nominaions are aced on in Presidenial
elecion years
In our own cenury here are wo paricularly poignan cases The 1916 confirmaion figh over Louis
D Brandeis one o Americarsquos grea juriss--a figh filled wih mean-spiried ani-Semiic atacks on he
nominee--is an example o how elecion year poliics can pollue Senae consideraion o a disinguished
candidae And he 1968 filibuser agains Abe Forasrsquo nominaion--an assaul ha was launched by 19
Republican Senaors beore Presiden Johnson had even named Foras as his selecion--is similarly well
known by all who ollow his
Indeed many pundis on boh he lef and he righ quesioned our commiteersquos abiliy o airly process
he Bork nominaion--a year beore he 1988 campaign--wihou becoming enangled in Presidenialpoliics While I believe his concern was misplaced and ulimaely disproved i illusraes how ears o
such poliicizaion can undermine confidence in he confirmaion process
Moreover he radiion agains acing on Supreme Cour nominaions in a Presidenial year is paricularly
srong when he vacancy occurs in he summer or all o ha elecion season
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BIDEN RULES
Thus while a ew Jusices have been confirmed in he summer or all o a Presidenial elecion season
such confirmaions are rare--only five imes in our hisory have summer or all confirmaions been
graned wih he laes--he laes--being he Augus 1846 confirmaion o Jusice Rober Grier
In ac no Jusice has ever been confirmed in Sepember or Ocober o an elecion year--he sor o iming
which has become sandard in he modern confirmaion process Indeed in American hisory he onlyatemp o push hrough a Sepember or Ocober confirmaion was he ailed campaign o approve Abe
Forasrsquo nominaion in 1968 I canno believe anyone would wan o repea ha experience in odayrsquos climae
Moreover o he five Jusices who were confirmed in he summer o an elecion year all five were
nominaed or vacancies ha had arisen beore he summer began Indeed Jusice Grierrsquos Augus
confirmaion was or a vacancy on he Cour ha was more han 2 years old as was he July confirmaion
o Jusice Samuel Miller in 1862
Thus more relevan or he siuaion we could be acing in 1922 is his saisic six Supreme Cour
vacancies have occurred in he summer or all o a Presidenial elecion year and never--no once--has
he Senae confirmed a nominee or hese vacancies beore he November elecion
In our o hese six cases--in 1800 1828 1864 and 1956--he Presiden himsel wihheld making a
nominaion unil afer he elecion was held
In boh o he wo insances where he Presiden did insis on naming a nominee under hese circumsances
Edward Bradord in 1952 and Abe Foras in 1968 he Senae reused o confirm hese selecions
Thus as we ener he summer o he Presidenial elecion year i is ime o consider wheher his
unbroken sring o hisorical radiion should be broken In my view wha hisory suppors common
sense dicaes in he case o 1992 Given he unusual rancor ha prevailed in he Thomas nominaion he
need or some serious reevaluaion o he nominaion and confirmaion process and he overall level o
biterness ha sadly inecs our poliical sysem and his Presidenial campaign already i is my view ha
he prospecs or anyhing bu conflagraion wih respec o a Supreme Cour nominaion his year are
remoe a bes
O Presidens Reaganrsquos and Bushrsquos las seven selecions o he Cour wo were no confirmed and wo
more were approved wih he mos voes cas agains hem in he hisory o he Unied Saes o America
We have seen how Mr Presiden in my view poliics has played ar oo large a role in he Reagan-Bush
nominaions o dae One can only imagine ha role becoming overarching i a choice were made his
year assuming a Jusice announced omorrow ha he or she was sepping down
Should a Jusice resign his summer and he Presiden move o name a successor acions ha will occur
jus days beore he Democraic Presidenial Convenion and weeks beore he Republican Convenion
mees a process ha is already in doub in he minds o many will become disrused by all Senae
consideraion o a nominee under hese circumsances is no air o he Presiden o he nominee or o
he Senae isel
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BIDEN RULES
Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i
will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom
boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns
omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should
consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil
afer he November elecion is compleed
The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy
ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way
o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary
Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer
he poliical campaign season is over
I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns
we will have seen in modern imes
I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i
was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be
permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in
he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic
conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion
mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral
o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion
Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as
I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he
Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and
he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is
nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks
In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain
Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise
beween he branches would no be sofened bu raher he prospecs or such compromise would be
naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process
migh be changed in he nex adminisraion wheher i is a Democra or a Republican
I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive
social agenda ha he Congress and he public have rejeced In his way all he paricipans in he
process can be clear well in advance o how I inend o approach any uure nominaions
Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he
nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o
be chairman in he nex adminisraion
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BIDEN RULES
I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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BIDEN RULES
As I said when I suppored heir confirmaions neiher man is one whom I would have chosen had I been
Presiden Bu each reflecs a balanced selecion a nonideological conservaive ha sands beween he
Whie House philosophy and he Senae
I migh jus noe parenheically in he decision yeserday on school prayer or prayer beore
convocaions in public schools Jusices Souer and Kennedy ook a posiion diamerically opposed oha ha has been proffered by his adminisraion and he previous one or he pas 11 years
While I have disagreed wih some o he decisions by each o hese wo Juriss I know ha Presiden
Bush mus say he same hing Tha he disagrees wih some o he decisions o he wo men Kennedy
and Souer Bu I offer hem as examples Mr Presiden ha boh men have issued some opinions ha
I sharply rejec Bu in a period o divided Governmen boh rom he Cour o compromise candidaes
who are appropriae or consideraion and whose confirmaions I suppored
In my view he conemporary confirmaion process uncioned well in rejecing Judge Bork and in
approving Jusices Kennedy and Souer And ye sadly even in so succeeding one could see wihin he
process he seeds o an explosion ha was o come wih he Thomas nominaion and he desrucive
orces ha were going o ear i apar
As I said earlier he roo o he curren collapse o he confirmaion process is he adminisraionrsquos
campaign o make he Supreme Cour an agen o an ulrarigh conservaive social agenda which lacks
suppor in he Congress and in he counry
I would jus poin ou again parenheically Mr Presiden ha he enire social agenda o he Reagan
adminisraion has ye o be able o gain a majoriy suppor in he US Senae or he US House o
Represenaives or among he American people over he pas 11 years So ailing he abiliy o do ha boh
Presidens have concluded and did conclude ha he avenue o ha change was o remake he Cour
In describing how he reacors o differen orces and acions have brough abou he difficuly we now
have o ace I do no wan anybody o lose sigh o he ac ha i is he adminisraionrsquos nominaion
agenda ha is he roo cause o his dilemma Tha is i you will he original sin which has creaed all o
he problems ha plague he process oday The adminisraionrsquos desire o placae he righwing o is
pary which is driven by a single issue--overurning Roe versus Wade
To he members o his Republican acion no mere conservaive such as Jusice OrsquoConnor or Jusice
Powell is sae o use he word hey ofen use The adminisraion has urged us o reach or a Scalia
a Bork a Thomas Bu i his is he original sin behind odayrsquos woes i is no he only cause o he
confirmaion deadlock And here are hree consequences o he Reagan-Bush nominaion sraegy ha
have conribued o he problem
Firs Democras and moderae Republicans have placed i ino he hands o he Republican righ by
acceping Roe as he divining rod in reverse making a nomineersquos views or reusal o sae his views on
his quesion he overriding concern in he confirmaion process
Ye in enjoying he righ o permi he single issue o dominae he debae he cener and he lef
have los sigh o he ac ha nominees are chosen by Republicans ulraconservaives They end o
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BIDEN RULES
embrace oher consiuional and jurisprudenial views unrelaed o aborion bu equally a he ar end
o he specrum
To pu i anoher way he cener and he lef which won such broad public suppor or he posiion
agains Judge Borkrsquos nominaion have allowed hemselves o be divided as single-issue paricipans
This has given rise o even more rusraion abou he process rom boh paricipans and observers and
was one cause or he schism ha emerged in he Thomas confirmaion debae Moreover he ocus on
Roe prevens he commitee rom exploring many legiimae issues in our hearing because quesions
abou he nominees on many maters rom he cuting-edge issue o he righ o privacy o he age-old
legal docrine o sare decisis are immediaely assumed by all hose who observed he process o be
cover quesions abou aborion when hey have nohing o do wih aborion
Among he mos rusraing aspecs o he Souer and Thomas hearings was ha when I ried o quesion
he nominees on wheher hey hough individuals had a righ o privacy everyone--he press he public
he nominees my colleagues--hough ha I was rying o ask abou aborion in disguise no mater how
many imes I said ruhully and rankly and I quoe
No orge abou aborion To know how you will ace he many unknown quesions ha will conron he
Cour ino he 21s cenury I mus know wheher or no you hink individuals have a righ o privacy
No mater how many imes I insised everyone believed I was asking abou aborion Tha is jus how
powerully he issue dominaes our process
(Mr KOHL assumed he chair)
Mr BIDEN Second in he period beween he Bork and he Thomas nominaions here developed wha
could be called an uninended conspiracy o exremismrsquo beween he righ and he lef o underminehe confirmaion process and quesion he legiimacy o is oucomes
Simply pu he righ could no accep ha any process which resuled in he rejecion o Judge Bork
was air or legiimae Nowihsanding he conemporaneous declaraion o may Republican Senaors
ha he hearings and process or handling he Bork nominaion were air a subsequen myhology has
developed ha claims oherwise
We are old ha he hearings were iled agains Bork bu here were more winesses who esified or
him han appeared in opposiion I have heard his deea blamed on scheduling o he winesses Well
we simply alernaed pro-con pro-con panel afer panel
And he lis o excuses goes on and on I was he camera angle hey said he beard he lighs he
iming--all unair all engaged in by hose who opposed Bork o bring him down
In sum he conservaive wing o he Republican Pary has never acceped he cold hard ac ha he
Senae rejeced Judge Bork because his views came o be well undersood and were considered
unaccepable And because his rejecion o heir core philosophy is inconceivable o he legal righ
hey have been on a hun or villains ever since
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BIDEN RULES
They have atacked he press as in a recen inemperae speech by a conservaive Federal judge
bashing wo New York Times reporers who are among he fines o cover Supreme Cour hearings Bu
mos o all hese movemen conservaives have atacked he confirmaion process isel and he Senae
or exercising is consiuional duies o conduc i
Bu i does no sop here Mr Presiden
A he same ime he lef oo has clohed is rusraion wih is inabiliy o persuade he American public
o he wisdom o is agenda in anger abou he confirmaion process as well
The lef has reused o accep he ac ha when one poliical branch is conrolled by a conservaive
Republican and he oher has is philosophical ulcrum resing on key Souhern Democras who
hold he balance on close voes in he Senae i is ineviable ha he Cour is going o grow more
conservaive Accepable candidaes mus be ound among hose who sraddle his ideological gul
such as Jusices Kennedy and Souer who were approved by a combined oal o 188 o 9 in he Senae
The lef Mr Presiden is rusraed because a conservaive Presiden and a Senae where he ulcrum isheld by conservaive Souhern Democras is no going o nominae a Jusice Brennan who I hink was
a grea Jusice and we should find people o replace him ideologically They reuse o accep realiy Mr
Presiden jus as he righ reuses o accep he realiy o a Bork deea
Bork was deeaed because his views o wha he hough America should become were differen han
hose held by he vas majoriy o Americans and an overwhelming majoriy o Senaors and had no a
whi o do wih wheher or no he had a beard a camera angle an ad by an ouside group or he order
o winesses
So Mr Presiden he confirmaion process has hus become a convenien scapegoa or ideological
advocaes o compeing social visions--advocaes who have no been able o persuade he generally
moderae American public o he wisdom o eiher o eiher o heir views when ramed in he exreme
In effec hen Mr Presiden hese advocaes have joined in an ad hoc alliance he exreme righ and
he exreme lef o undermine public confidence in a process aimed a moderaion--hoping perhaps o
omen a grea social and culural war in which one or he oher will prevail
The hird problem Mr Presiden is he confirmaion process has been ineced by he general meanness
and nasiness ha pervades our poliical process oday While I believe hey played litle or no role in
he oucome he inaccurae elevision ads ha were run agains Judge Borkrsquos confirmaion only auned
increasingly cuting responses rom he righ
The Thomas nominaion included a level o personal biterness ha may be ypical o our modern
poliical campaigns bu is desrucive o any process dependen upon consensus as is he confirmaion
process Afer he nominaion was announced one o he opponens o Judge Thomas ouside he
Senae hreaened o Bork himrsquo--a menacing pledge ha served no purpose And hen as he hearings
were abou o begin he same conservaive group ha produced he inamous Willie Horon ads ran
elevision commercials atacking members o he Judiciary Commitee including mysel wih he inen
o inimidae--and hey so saed--inimidae our review o he nominaion
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BIDEN RULES
I find i ironic Mr Presiden ha we could recognize he cos--i no find he answers--or his nasiness in
he conex o Presidenial elecions bu lack he same insigh wih respec o he confirmaion process
Many o he same voices who have criicized he commitee or no going hard enough afer allegaions
ha Judge Thomas had improper ravel expenses spieully ranserred a whisleblower a EEOC or
was riends wih a proaparheid lobbyis--many o hese criics o our commitee are among he firs obemoan he ac ha he Presidenial campaign o 1992 has been dominaed by quesions o personal
wrong-doing insead o he real issues
We canno have i boh ways
I oo believe ha he Naion would be beter off i he curren campaign was cenered on dispues over
public policy raher han gossip abou marial fideliy and marijuana use Bu I mus say ha he same
is rue abou our review o Supreme Cour nominees he Naion is enriched when we explore heir
jurisprudenial views i is debased when we plow hrough heir privae lives or dir
As wih Presidenial campaigns he press--perhaps because i is easier perhaps because i sells papers--has oo ofen ocused heir coverage o Supreme Cour nominees on such gossip and personal maters
raher han on he subsanial--bu difficul--ask o rying o discern heir philosophy and heir ideology
because i is heir philosophy and heir ideology ha will affec how I am able o live my lie how my
children will be able o live heir lives no wheher or no when hey were 17 years old hey smoked
marijuana or anyhing else
Le me make i clear here ha I am no now speaking o Proessor Hillrsquos allegaions agains Judge
Thomas which were cerainly serious and significan enough o meri he ull invesigaion ha he
commitee conduced boh beore and afer heir public disclosure Raher I am speaking o he
numerous lesser allegaions agains nominees Bork Kennedy Souer and Thomas which he mosexreme commitee criics say we have done oo litle o pursue
Some examples o wha hese criics waned o see us delve ino come o mind Judge Bork had his
video renal records exhumed and sudied or possible renal o pornographic films Judge Souer has
his marial saus quesioned and el obligaed o produce ex-girlriends o esiy o his viriliy Judge
Thomas was assauled by a whispering campaign ha spread unsubsaniaed rumors o abou he
cause o he end o his firs marriage
Each ime he airing o hese charges enraged Republican allies o hese nominees who considered
he charges unair and a violaion o heir righ o privacy And each ime when he commitee--a my
direcion--reused o explore hese awdry rumors he more exreme criics o our process grew more
and more rusraed wih he resuls
This was anoher ension which came o a head during he Thomas nominaion and which exploded
when Proessor Hillrsquos charges were made public
To sum up hen The confirmaion process launched in 1987--an atemp o provide a means or dealing
wih he Reagan-Bush campaign o ransorm he Supreme Cour ideologically a a ime when hose
ideological views lacked public suppor--has been orn asunder The process lacks he sor o broad-
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BIDEN RULES
based suppor ha could make i work and is credibiliy has been slowly eroded by he criicism i has
received rom boh liberal and conservaive ideologues
A legiimae process ha was buil in good aih o ideniy and confirm consensus nominees has been
desroyed by many o he same corrosive influences ha have so devasaed our Presidenial poliics
and our naional dialog on public affairs
Consequenly i is my view ha--paricularly i he realiy o divided governmen during a ime o grea
change a he Cour coninues in he nex adminisraion--uure confirmaions mus be conduced
differenly han he preceding ones The pressures and ensions on he exising process--which
exploded during he Thomas nominaion figh--make a resoraion o wha came beore Judge Thomasrsquo
nominaion--even i i was desirable--a pracical impossibiliy
THE UNIQUE HISTORY OF ELECTION YEAR NOMINATIONS
Having said ha we ace one immediae quesion Can our Supreme Cour nominaion and confirmaion
processes so racked by discord and biterness be repaired in a Presidenial elecion year Hisoryeaches us ha his is exremely unlikely
Some o our Naionrsquos mos biter and heaed confirmaion fighs have come in Presidenial elecion years
The bruising confirmaion figh over Roger Taneyrsquos nominaion in 1836 he Senaersquos reusal o confirm
our nominaions by Presiden Tyler in 1844 he single voe rejecions o nominees Badger and Black
by lameduck Presidens Fillmore and Buchanan in he mid-19h cenury and he narrow approvals o
Jusices Lamar and Fuller in 1888 are jus some examples o hese fighs in he 19h cenury
Overall while only one in our Supreme Cour nominaions has been he subjec o significan
opposiion he figure rises o one ou o wo when such nominaions are aced on in Presidenial
elecion years
In our own cenury here are wo paricularly poignan cases The 1916 confirmaion figh over Louis
D Brandeis one o Americarsquos grea juriss--a figh filled wih mean-spiried ani-Semiic atacks on he
nominee--is an example o how elecion year poliics can pollue Senae consideraion o a disinguished
candidae And he 1968 filibuser agains Abe Forasrsquo nominaion--an assaul ha was launched by 19
Republican Senaors beore Presiden Johnson had even named Foras as his selecion--is similarly well
known by all who ollow his
Indeed many pundis on boh he lef and he righ quesioned our commiteersquos abiliy o airly process
he Bork nominaion--a year beore he 1988 campaign--wihou becoming enangled in Presidenialpoliics While I believe his concern was misplaced and ulimaely disproved i illusraes how ears o
such poliicizaion can undermine confidence in he confirmaion process
Moreover he radiion agains acing on Supreme Cour nominaions in a Presidenial year is paricularly
srong when he vacancy occurs in he summer or all o ha elecion season
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BIDEN RULES
Thus while a ew Jusices have been confirmed in he summer or all o a Presidenial elecion season
such confirmaions are rare--only five imes in our hisory have summer or all confirmaions been
graned wih he laes--he laes--being he Augus 1846 confirmaion o Jusice Rober Grier
In ac no Jusice has ever been confirmed in Sepember or Ocober o an elecion year--he sor o iming
which has become sandard in he modern confirmaion process Indeed in American hisory he onlyatemp o push hrough a Sepember or Ocober confirmaion was he ailed campaign o approve Abe
Forasrsquo nominaion in 1968 I canno believe anyone would wan o repea ha experience in odayrsquos climae
Moreover o he five Jusices who were confirmed in he summer o an elecion year all five were
nominaed or vacancies ha had arisen beore he summer began Indeed Jusice Grierrsquos Augus
confirmaion was or a vacancy on he Cour ha was more han 2 years old as was he July confirmaion
o Jusice Samuel Miller in 1862
Thus more relevan or he siuaion we could be acing in 1922 is his saisic six Supreme Cour
vacancies have occurred in he summer or all o a Presidenial elecion year and never--no once--has
he Senae confirmed a nominee or hese vacancies beore he November elecion
In our o hese six cases--in 1800 1828 1864 and 1956--he Presiden himsel wihheld making a
nominaion unil afer he elecion was held
In boh o he wo insances where he Presiden did insis on naming a nominee under hese circumsances
Edward Bradord in 1952 and Abe Foras in 1968 he Senae reused o confirm hese selecions
Thus as we ener he summer o he Presidenial elecion year i is ime o consider wheher his
unbroken sring o hisorical radiion should be broken In my view wha hisory suppors common
sense dicaes in he case o 1992 Given he unusual rancor ha prevailed in he Thomas nominaion he
need or some serious reevaluaion o he nominaion and confirmaion process and he overall level o
biterness ha sadly inecs our poliical sysem and his Presidenial campaign already i is my view ha
he prospecs or anyhing bu conflagraion wih respec o a Supreme Cour nominaion his year are
remoe a bes
O Presidens Reaganrsquos and Bushrsquos las seven selecions o he Cour wo were no confirmed and wo
more were approved wih he mos voes cas agains hem in he hisory o he Unied Saes o America
We have seen how Mr Presiden in my view poliics has played ar oo large a role in he Reagan-Bush
nominaions o dae One can only imagine ha role becoming overarching i a choice were made his
year assuming a Jusice announced omorrow ha he or she was sepping down
Should a Jusice resign his summer and he Presiden move o name a successor acions ha will occur
jus days beore he Democraic Presidenial Convenion and weeks beore he Republican Convenion
mees a process ha is already in doub in he minds o many will become disrused by all Senae
consideraion o a nominee under hese circumsances is no air o he Presiden o he nominee or o
he Senae isel
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BIDEN RULES
Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i
will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom
boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns
omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should
consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil
afer he November elecion is compleed
The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy
ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way
o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary
Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer
he poliical campaign season is over
I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns
we will have seen in modern imes
I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i
was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be
permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in
he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic
conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion
mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral
o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion
Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as
I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he
Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and
he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is
nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks
In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain
Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise
beween he branches would no be sofened bu raher he prospecs or such compromise would be
naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process
migh be changed in he nex adminisraion wheher i is a Democra or a Republican
I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive
social agenda ha he Congress and he public have rejeced In his way all he paricipans in he
process can be clear well in advance o how I inend o approach any uure nominaions
Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he
nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o
be chairman in he nex adminisraion
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BIDEN RULES
I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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BIDEN RULES
embrace oher consiuional and jurisprudenial views unrelaed o aborion bu equally a he ar end
o he specrum
To pu i anoher way he cener and he lef which won such broad public suppor or he posiion
agains Judge Borkrsquos nominaion have allowed hemselves o be divided as single-issue paricipans
This has given rise o even more rusraion abou he process rom boh paricipans and observers and
was one cause or he schism ha emerged in he Thomas confirmaion debae Moreover he ocus on
Roe prevens he commitee rom exploring many legiimae issues in our hearing because quesions
abou he nominees on many maters rom he cuting-edge issue o he righ o privacy o he age-old
legal docrine o sare decisis are immediaely assumed by all hose who observed he process o be
cover quesions abou aborion when hey have nohing o do wih aborion
Among he mos rusraing aspecs o he Souer and Thomas hearings was ha when I ried o quesion
he nominees on wheher hey hough individuals had a righ o privacy everyone--he press he public
he nominees my colleagues--hough ha I was rying o ask abou aborion in disguise no mater how
many imes I said ruhully and rankly and I quoe
No orge abou aborion To know how you will ace he many unknown quesions ha will conron he
Cour ino he 21s cenury I mus know wheher or no you hink individuals have a righ o privacy
No mater how many imes I insised everyone believed I was asking abou aborion Tha is jus how
powerully he issue dominaes our process
(Mr KOHL assumed he chair)
Mr BIDEN Second in he period beween he Bork and he Thomas nominaions here developed wha
could be called an uninended conspiracy o exremismrsquo beween he righ and he lef o underminehe confirmaion process and quesion he legiimacy o is oucomes
Simply pu he righ could no accep ha any process which resuled in he rejecion o Judge Bork
was air or legiimae Nowihsanding he conemporaneous declaraion o may Republican Senaors
ha he hearings and process or handling he Bork nominaion were air a subsequen myhology has
developed ha claims oherwise
We are old ha he hearings were iled agains Bork bu here were more winesses who esified or
him han appeared in opposiion I have heard his deea blamed on scheduling o he winesses Well
we simply alernaed pro-con pro-con panel afer panel
And he lis o excuses goes on and on I was he camera angle hey said he beard he lighs he
iming--all unair all engaged in by hose who opposed Bork o bring him down
In sum he conservaive wing o he Republican Pary has never acceped he cold hard ac ha he
Senae rejeced Judge Bork because his views came o be well undersood and were considered
unaccepable And because his rejecion o heir core philosophy is inconceivable o he legal righ
hey have been on a hun or villains ever since
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BIDEN RULES
They have atacked he press as in a recen inemperae speech by a conservaive Federal judge
bashing wo New York Times reporers who are among he fines o cover Supreme Cour hearings Bu
mos o all hese movemen conservaives have atacked he confirmaion process isel and he Senae
or exercising is consiuional duies o conduc i
Bu i does no sop here Mr Presiden
A he same ime he lef oo has clohed is rusraion wih is inabiliy o persuade he American public
o he wisdom o is agenda in anger abou he confirmaion process as well
The lef has reused o accep he ac ha when one poliical branch is conrolled by a conservaive
Republican and he oher has is philosophical ulcrum resing on key Souhern Democras who
hold he balance on close voes in he Senae i is ineviable ha he Cour is going o grow more
conservaive Accepable candidaes mus be ound among hose who sraddle his ideological gul
such as Jusices Kennedy and Souer who were approved by a combined oal o 188 o 9 in he Senae
The lef Mr Presiden is rusraed because a conservaive Presiden and a Senae where he ulcrum isheld by conservaive Souhern Democras is no going o nominae a Jusice Brennan who I hink was
a grea Jusice and we should find people o replace him ideologically They reuse o accep realiy Mr
Presiden jus as he righ reuses o accep he realiy o a Bork deea
Bork was deeaed because his views o wha he hough America should become were differen han
hose held by he vas majoriy o Americans and an overwhelming majoriy o Senaors and had no a
whi o do wih wheher or no he had a beard a camera angle an ad by an ouside group or he order
o winesses
So Mr Presiden he confirmaion process has hus become a convenien scapegoa or ideological
advocaes o compeing social visions--advocaes who have no been able o persuade he generally
moderae American public o he wisdom o eiher o eiher o heir views when ramed in he exreme
In effec hen Mr Presiden hese advocaes have joined in an ad hoc alliance he exreme righ and
he exreme lef o undermine public confidence in a process aimed a moderaion--hoping perhaps o
omen a grea social and culural war in which one or he oher will prevail
The hird problem Mr Presiden is he confirmaion process has been ineced by he general meanness
and nasiness ha pervades our poliical process oday While I believe hey played litle or no role in
he oucome he inaccurae elevision ads ha were run agains Judge Borkrsquos confirmaion only auned
increasingly cuting responses rom he righ
The Thomas nominaion included a level o personal biterness ha may be ypical o our modern
poliical campaigns bu is desrucive o any process dependen upon consensus as is he confirmaion
process Afer he nominaion was announced one o he opponens o Judge Thomas ouside he
Senae hreaened o Bork himrsquo--a menacing pledge ha served no purpose And hen as he hearings
were abou o begin he same conservaive group ha produced he inamous Willie Horon ads ran
elevision commercials atacking members o he Judiciary Commitee including mysel wih he inen
o inimidae--and hey so saed--inimidae our review o he nominaion
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I find i ironic Mr Presiden ha we could recognize he cos--i no find he answers--or his nasiness in
he conex o Presidenial elecions bu lack he same insigh wih respec o he confirmaion process
Many o he same voices who have criicized he commitee or no going hard enough afer allegaions
ha Judge Thomas had improper ravel expenses spieully ranserred a whisleblower a EEOC or
was riends wih a proaparheid lobbyis--many o hese criics o our commitee are among he firs obemoan he ac ha he Presidenial campaign o 1992 has been dominaed by quesions o personal
wrong-doing insead o he real issues
We canno have i boh ways
I oo believe ha he Naion would be beter off i he curren campaign was cenered on dispues over
public policy raher han gossip abou marial fideliy and marijuana use Bu I mus say ha he same
is rue abou our review o Supreme Cour nominees he Naion is enriched when we explore heir
jurisprudenial views i is debased when we plow hrough heir privae lives or dir
As wih Presidenial campaigns he press--perhaps because i is easier perhaps because i sells papers--has oo ofen ocused heir coverage o Supreme Cour nominees on such gossip and personal maters
raher han on he subsanial--bu difficul--ask o rying o discern heir philosophy and heir ideology
because i is heir philosophy and heir ideology ha will affec how I am able o live my lie how my
children will be able o live heir lives no wheher or no when hey were 17 years old hey smoked
marijuana or anyhing else
Le me make i clear here ha I am no now speaking o Proessor Hillrsquos allegaions agains Judge
Thomas which were cerainly serious and significan enough o meri he ull invesigaion ha he
commitee conduced boh beore and afer heir public disclosure Raher I am speaking o he
numerous lesser allegaions agains nominees Bork Kennedy Souer and Thomas which he mosexreme commitee criics say we have done oo litle o pursue
Some examples o wha hese criics waned o see us delve ino come o mind Judge Bork had his
video renal records exhumed and sudied or possible renal o pornographic films Judge Souer has
his marial saus quesioned and el obligaed o produce ex-girlriends o esiy o his viriliy Judge
Thomas was assauled by a whispering campaign ha spread unsubsaniaed rumors o abou he
cause o he end o his firs marriage
Each ime he airing o hese charges enraged Republican allies o hese nominees who considered
he charges unair and a violaion o heir righ o privacy And each ime when he commitee--a my
direcion--reused o explore hese awdry rumors he more exreme criics o our process grew more
and more rusraed wih he resuls
This was anoher ension which came o a head during he Thomas nominaion and which exploded
when Proessor Hillrsquos charges were made public
To sum up hen The confirmaion process launched in 1987--an atemp o provide a means or dealing
wih he Reagan-Bush campaign o ransorm he Supreme Cour ideologically a a ime when hose
ideological views lacked public suppor--has been orn asunder The process lacks he sor o broad-
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BIDEN RULES
based suppor ha could make i work and is credibiliy has been slowly eroded by he criicism i has
received rom boh liberal and conservaive ideologues
A legiimae process ha was buil in good aih o ideniy and confirm consensus nominees has been
desroyed by many o he same corrosive influences ha have so devasaed our Presidenial poliics
and our naional dialog on public affairs
Consequenly i is my view ha--paricularly i he realiy o divided governmen during a ime o grea
change a he Cour coninues in he nex adminisraion--uure confirmaions mus be conduced
differenly han he preceding ones The pressures and ensions on he exising process--which
exploded during he Thomas nominaion figh--make a resoraion o wha came beore Judge Thomasrsquo
nominaion--even i i was desirable--a pracical impossibiliy
THE UNIQUE HISTORY OF ELECTION YEAR NOMINATIONS
Having said ha we ace one immediae quesion Can our Supreme Cour nominaion and confirmaion
processes so racked by discord and biterness be repaired in a Presidenial elecion year Hisoryeaches us ha his is exremely unlikely
Some o our Naionrsquos mos biter and heaed confirmaion fighs have come in Presidenial elecion years
The bruising confirmaion figh over Roger Taneyrsquos nominaion in 1836 he Senaersquos reusal o confirm
our nominaions by Presiden Tyler in 1844 he single voe rejecions o nominees Badger and Black
by lameduck Presidens Fillmore and Buchanan in he mid-19h cenury and he narrow approvals o
Jusices Lamar and Fuller in 1888 are jus some examples o hese fighs in he 19h cenury
Overall while only one in our Supreme Cour nominaions has been he subjec o significan
opposiion he figure rises o one ou o wo when such nominaions are aced on in Presidenial
elecion years
In our own cenury here are wo paricularly poignan cases The 1916 confirmaion figh over Louis
D Brandeis one o Americarsquos grea juriss--a figh filled wih mean-spiried ani-Semiic atacks on he
nominee--is an example o how elecion year poliics can pollue Senae consideraion o a disinguished
candidae And he 1968 filibuser agains Abe Forasrsquo nominaion--an assaul ha was launched by 19
Republican Senaors beore Presiden Johnson had even named Foras as his selecion--is similarly well
known by all who ollow his
Indeed many pundis on boh he lef and he righ quesioned our commiteersquos abiliy o airly process
he Bork nominaion--a year beore he 1988 campaign--wihou becoming enangled in Presidenialpoliics While I believe his concern was misplaced and ulimaely disproved i illusraes how ears o
such poliicizaion can undermine confidence in he confirmaion process
Moreover he radiion agains acing on Supreme Cour nominaions in a Presidenial year is paricularly
srong when he vacancy occurs in he summer or all o ha elecion season
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BIDEN RULES
Thus while a ew Jusices have been confirmed in he summer or all o a Presidenial elecion season
such confirmaions are rare--only five imes in our hisory have summer or all confirmaions been
graned wih he laes--he laes--being he Augus 1846 confirmaion o Jusice Rober Grier
In ac no Jusice has ever been confirmed in Sepember or Ocober o an elecion year--he sor o iming
which has become sandard in he modern confirmaion process Indeed in American hisory he onlyatemp o push hrough a Sepember or Ocober confirmaion was he ailed campaign o approve Abe
Forasrsquo nominaion in 1968 I canno believe anyone would wan o repea ha experience in odayrsquos climae
Moreover o he five Jusices who were confirmed in he summer o an elecion year all five were
nominaed or vacancies ha had arisen beore he summer began Indeed Jusice Grierrsquos Augus
confirmaion was or a vacancy on he Cour ha was more han 2 years old as was he July confirmaion
o Jusice Samuel Miller in 1862
Thus more relevan or he siuaion we could be acing in 1922 is his saisic six Supreme Cour
vacancies have occurred in he summer or all o a Presidenial elecion year and never--no once--has
he Senae confirmed a nominee or hese vacancies beore he November elecion
In our o hese six cases--in 1800 1828 1864 and 1956--he Presiden himsel wihheld making a
nominaion unil afer he elecion was held
In boh o he wo insances where he Presiden did insis on naming a nominee under hese circumsances
Edward Bradord in 1952 and Abe Foras in 1968 he Senae reused o confirm hese selecions
Thus as we ener he summer o he Presidenial elecion year i is ime o consider wheher his
unbroken sring o hisorical radiion should be broken In my view wha hisory suppors common
sense dicaes in he case o 1992 Given he unusual rancor ha prevailed in he Thomas nominaion he
need or some serious reevaluaion o he nominaion and confirmaion process and he overall level o
biterness ha sadly inecs our poliical sysem and his Presidenial campaign already i is my view ha
he prospecs or anyhing bu conflagraion wih respec o a Supreme Cour nominaion his year are
remoe a bes
O Presidens Reaganrsquos and Bushrsquos las seven selecions o he Cour wo were no confirmed and wo
more were approved wih he mos voes cas agains hem in he hisory o he Unied Saes o America
We have seen how Mr Presiden in my view poliics has played ar oo large a role in he Reagan-Bush
nominaions o dae One can only imagine ha role becoming overarching i a choice were made his
year assuming a Jusice announced omorrow ha he or she was sepping down
Should a Jusice resign his summer and he Presiden move o name a successor acions ha will occur
jus days beore he Democraic Presidenial Convenion and weeks beore he Republican Convenion
mees a process ha is already in doub in he minds o many will become disrused by all Senae
consideraion o a nominee under hese circumsances is no air o he Presiden o he nominee or o
he Senae isel
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BIDEN RULES
Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i
will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom
boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns
omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should
consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil
afer he November elecion is compleed
The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy
ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way
o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary
Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer
he poliical campaign season is over
I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns
we will have seen in modern imes
I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i
was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be
permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in
he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic
conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion
mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral
o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion
Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as
I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he
Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and
he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is
nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks
In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain
Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise
beween he branches would no be sofened bu raher he prospecs or such compromise would be
naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process
migh be changed in he nex adminisraion wheher i is a Democra or a Republican
I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive
social agenda ha he Congress and he public have rejeced In his way all he paricipans in he
process can be clear well in advance o how I inend o approach any uure nominaions
Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he
nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o
be chairman in he nex adminisraion
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BIDEN RULES
I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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They have atacked he press as in a recen inemperae speech by a conservaive Federal judge
bashing wo New York Times reporers who are among he fines o cover Supreme Cour hearings Bu
mos o all hese movemen conservaives have atacked he confirmaion process isel and he Senae
or exercising is consiuional duies o conduc i
Bu i does no sop here Mr Presiden
A he same ime he lef oo has clohed is rusraion wih is inabiliy o persuade he American public
o he wisdom o is agenda in anger abou he confirmaion process as well
The lef has reused o accep he ac ha when one poliical branch is conrolled by a conservaive
Republican and he oher has is philosophical ulcrum resing on key Souhern Democras who
hold he balance on close voes in he Senae i is ineviable ha he Cour is going o grow more
conservaive Accepable candidaes mus be ound among hose who sraddle his ideological gul
such as Jusices Kennedy and Souer who were approved by a combined oal o 188 o 9 in he Senae
The lef Mr Presiden is rusraed because a conservaive Presiden and a Senae where he ulcrum isheld by conservaive Souhern Democras is no going o nominae a Jusice Brennan who I hink was
a grea Jusice and we should find people o replace him ideologically They reuse o accep realiy Mr
Presiden jus as he righ reuses o accep he realiy o a Bork deea
Bork was deeaed because his views o wha he hough America should become were differen han
hose held by he vas majoriy o Americans and an overwhelming majoriy o Senaors and had no a
whi o do wih wheher or no he had a beard a camera angle an ad by an ouside group or he order
o winesses
So Mr Presiden he confirmaion process has hus become a convenien scapegoa or ideological
advocaes o compeing social visions--advocaes who have no been able o persuade he generally
moderae American public o he wisdom o eiher o eiher o heir views when ramed in he exreme
In effec hen Mr Presiden hese advocaes have joined in an ad hoc alliance he exreme righ and
he exreme lef o undermine public confidence in a process aimed a moderaion--hoping perhaps o
omen a grea social and culural war in which one or he oher will prevail
The hird problem Mr Presiden is he confirmaion process has been ineced by he general meanness
and nasiness ha pervades our poliical process oday While I believe hey played litle or no role in
he oucome he inaccurae elevision ads ha were run agains Judge Borkrsquos confirmaion only auned
increasingly cuting responses rom he righ
The Thomas nominaion included a level o personal biterness ha may be ypical o our modern
poliical campaigns bu is desrucive o any process dependen upon consensus as is he confirmaion
process Afer he nominaion was announced one o he opponens o Judge Thomas ouside he
Senae hreaened o Bork himrsquo--a menacing pledge ha served no purpose And hen as he hearings
were abou o begin he same conservaive group ha produced he inamous Willie Horon ads ran
elevision commercials atacking members o he Judiciary Commitee including mysel wih he inen
o inimidae--and hey so saed--inimidae our review o he nominaion
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I find i ironic Mr Presiden ha we could recognize he cos--i no find he answers--or his nasiness in
he conex o Presidenial elecions bu lack he same insigh wih respec o he confirmaion process
Many o he same voices who have criicized he commitee or no going hard enough afer allegaions
ha Judge Thomas had improper ravel expenses spieully ranserred a whisleblower a EEOC or
was riends wih a proaparheid lobbyis--many o hese criics o our commitee are among he firs obemoan he ac ha he Presidenial campaign o 1992 has been dominaed by quesions o personal
wrong-doing insead o he real issues
We canno have i boh ways
I oo believe ha he Naion would be beter off i he curren campaign was cenered on dispues over
public policy raher han gossip abou marial fideliy and marijuana use Bu I mus say ha he same
is rue abou our review o Supreme Cour nominees he Naion is enriched when we explore heir
jurisprudenial views i is debased when we plow hrough heir privae lives or dir
As wih Presidenial campaigns he press--perhaps because i is easier perhaps because i sells papers--has oo ofen ocused heir coverage o Supreme Cour nominees on such gossip and personal maters
raher han on he subsanial--bu difficul--ask o rying o discern heir philosophy and heir ideology
because i is heir philosophy and heir ideology ha will affec how I am able o live my lie how my
children will be able o live heir lives no wheher or no when hey were 17 years old hey smoked
marijuana or anyhing else
Le me make i clear here ha I am no now speaking o Proessor Hillrsquos allegaions agains Judge
Thomas which were cerainly serious and significan enough o meri he ull invesigaion ha he
commitee conduced boh beore and afer heir public disclosure Raher I am speaking o he
numerous lesser allegaions agains nominees Bork Kennedy Souer and Thomas which he mosexreme commitee criics say we have done oo litle o pursue
Some examples o wha hese criics waned o see us delve ino come o mind Judge Bork had his
video renal records exhumed and sudied or possible renal o pornographic films Judge Souer has
his marial saus quesioned and el obligaed o produce ex-girlriends o esiy o his viriliy Judge
Thomas was assauled by a whispering campaign ha spread unsubsaniaed rumors o abou he
cause o he end o his firs marriage
Each ime he airing o hese charges enraged Republican allies o hese nominees who considered
he charges unair and a violaion o heir righ o privacy And each ime when he commitee--a my
direcion--reused o explore hese awdry rumors he more exreme criics o our process grew more
and more rusraed wih he resuls
This was anoher ension which came o a head during he Thomas nominaion and which exploded
when Proessor Hillrsquos charges were made public
To sum up hen The confirmaion process launched in 1987--an atemp o provide a means or dealing
wih he Reagan-Bush campaign o ransorm he Supreme Cour ideologically a a ime when hose
ideological views lacked public suppor--has been orn asunder The process lacks he sor o broad-
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BIDEN RULES
based suppor ha could make i work and is credibiliy has been slowly eroded by he criicism i has
received rom boh liberal and conservaive ideologues
A legiimae process ha was buil in good aih o ideniy and confirm consensus nominees has been
desroyed by many o he same corrosive influences ha have so devasaed our Presidenial poliics
and our naional dialog on public affairs
Consequenly i is my view ha--paricularly i he realiy o divided governmen during a ime o grea
change a he Cour coninues in he nex adminisraion--uure confirmaions mus be conduced
differenly han he preceding ones The pressures and ensions on he exising process--which
exploded during he Thomas nominaion figh--make a resoraion o wha came beore Judge Thomasrsquo
nominaion--even i i was desirable--a pracical impossibiliy
THE UNIQUE HISTORY OF ELECTION YEAR NOMINATIONS
Having said ha we ace one immediae quesion Can our Supreme Cour nominaion and confirmaion
processes so racked by discord and biterness be repaired in a Presidenial elecion year Hisoryeaches us ha his is exremely unlikely
Some o our Naionrsquos mos biter and heaed confirmaion fighs have come in Presidenial elecion years
The bruising confirmaion figh over Roger Taneyrsquos nominaion in 1836 he Senaersquos reusal o confirm
our nominaions by Presiden Tyler in 1844 he single voe rejecions o nominees Badger and Black
by lameduck Presidens Fillmore and Buchanan in he mid-19h cenury and he narrow approvals o
Jusices Lamar and Fuller in 1888 are jus some examples o hese fighs in he 19h cenury
Overall while only one in our Supreme Cour nominaions has been he subjec o significan
opposiion he figure rises o one ou o wo when such nominaions are aced on in Presidenial
elecion years
In our own cenury here are wo paricularly poignan cases The 1916 confirmaion figh over Louis
D Brandeis one o Americarsquos grea juriss--a figh filled wih mean-spiried ani-Semiic atacks on he
nominee--is an example o how elecion year poliics can pollue Senae consideraion o a disinguished
candidae And he 1968 filibuser agains Abe Forasrsquo nominaion--an assaul ha was launched by 19
Republican Senaors beore Presiden Johnson had even named Foras as his selecion--is similarly well
known by all who ollow his
Indeed many pundis on boh he lef and he righ quesioned our commiteersquos abiliy o airly process
he Bork nominaion--a year beore he 1988 campaign--wihou becoming enangled in Presidenialpoliics While I believe his concern was misplaced and ulimaely disproved i illusraes how ears o
such poliicizaion can undermine confidence in he confirmaion process
Moreover he radiion agains acing on Supreme Cour nominaions in a Presidenial year is paricularly
srong when he vacancy occurs in he summer or all o ha elecion season
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Thus while a ew Jusices have been confirmed in he summer or all o a Presidenial elecion season
such confirmaions are rare--only five imes in our hisory have summer or all confirmaions been
graned wih he laes--he laes--being he Augus 1846 confirmaion o Jusice Rober Grier
In ac no Jusice has ever been confirmed in Sepember or Ocober o an elecion year--he sor o iming
which has become sandard in he modern confirmaion process Indeed in American hisory he onlyatemp o push hrough a Sepember or Ocober confirmaion was he ailed campaign o approve Abe
Forasrsquo nominaion in 1968 I canno believe anyone would wan o repea ha experience in odayrsquos climae
Moreover o he five Jusices who were confirmed in he summer o an elecion year all five were
nominaed or vacancies ha had arisen beore he summer began Indeed Jusice Grierrsquos Augus
confirmaion was or a vacancy on he Cour ha was more han 2 years old as was he July confirmaion
o Jusice Samuel Miller in 1862
Thus more relevan or he siuaion we could be acing in 1922 is his saisic six Supreme Cour
vacancies have occurred in he summer or all o a Presidenial elecion year and never--no once--has
he Senae confirmed a nominee or hese vacancies beore he November elecion
In our o hese six cases--in 1800 1828 1864 and 1956--he Presiden himsel wihheld making a
nominaion unil afer he elecion was held
In boh o he wo insances where he Presiden did insis on naming a nominee under hese circumsances
Edward Bradord in 1952 and Abe Foras in 1968 he Senae reused o confirm hese selecions
Thus as we ener he summer o he Presidenial elecion year i is ime o consider wheher his
unbroken sring o hisorical radiion should be broken In my view wha hisory suppors common
sense dicaes in he case o 1992 Given he unusual rancor ha prevailed in he Thomas nominaion he
need or some serious reevaluaion o he nominaion and confirmaion process and he overall level o
biterness ha sadly inecs our poliical sysem and his Presidenial campaign already i is my view ha
he prospecs or anyhing bu conflagraion wih respec o a Supreme Cour nominaion his year are
remoe a bes
O Presidens Reaganrsquos and Bushrsquos las seven selecions o he Cour wo were no confirmed and wo
more were approved wih he mos voes cas agains hem in he hisory o he Unied Saes o America
We have seen how Mr Presiden in my view poliics has played ar oo large a role in he Reagan-Bush
nominaions o dae One can only imagine ha role becoming overarching i a choice were made his
year assuming a Jusice announced omorrow ha he or she was sepping down
Should a Jusice resign his summer and he Presiden move o name a successor acions ha will occur
jus days beore he Democraic Presidenial Convenion and weeks beore he Republican Convenion
mees a process ha is already in doub in he minds o many will become disrused by all Senae
consideraion o a nominee under hese circumsances is no air o he Presiden o he nominee or o
he Senae isel
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BIDEN RULES
Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i
will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom
boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns
omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should
consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil
afer he November elecion is compleed
The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy
ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way
o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary
Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer
he poliical campaign season is over
I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns
we will have seen in modern imes
I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i
was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be
permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in
he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic
conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion
mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral
o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion
Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as
I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he
Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and
he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is
nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks
In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain
Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise
beween he branches would no be sofened bu raher he prospecs or such compromise would be
naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process
migh be changed in he nex adminisraion wheher i is a Democra or a Republican
I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive
social agenda ha he Congress and he public have rejeced In his way all he paricipans in he
process can be clear well in advance o how I inend o approach any uure nominaions
Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he
nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o
be chairman in he nex adminisraion
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I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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BIDEN RULES
I find i ironic Mr Presiden ha we could recognize he cos--i no find he answers--or his nasiness in
he conex o Presidenial elecions bu lack he same insigh wih respec o he confirmaion process
Many o he same voices who have criicized he commitee or no going hard enough afer allegaions
ha Judge Thomas had improper ravel expenses spieully ranserred a whisleblower a EEOC or
was riends wih a proaparheid lobbyis--many o hese criics o our commitee are among he firs obemoan he ac ha he Presidenial campaign o 1992 has been dominaed by quesions o personal
wrong-doing insead o he real issues
We canno have i boh ways
I oo believe ha he Naion would be beter off i he curren campaign was cenered on dispues over
public policy raher han gossip abou marial fideliy and marijuana use Bu I mus say ha he same
is rue abou our review o Supreme Cour nominees he Naion is enriched when we explore heir
jurisprudenial views i is debased when we plow hrough heir privae lives or dir
As wih Presidenial campaigns he press--perhaps because i is easier perhaps because i sells papers--has oo ofen ocused heir coverage o Supreme Cour nominees on such gossip and personal maters
raher han on he subsanial--bu difficul--ask o rying o discern heir philosophy and heir ideology
because i is heir philosophy and heir ideology ha will affec how I am able o live my lie how my
children will be able o live heir lives no wheher or no when hey were 17 years old hey smoked
marijuana or anyhing else
Le me make i clear here ha I am no now speaking o Proessor Hillrsquos allegaions agains Judge
Thomas which were cerainly serious and significan enough o meri he ull invesigaion ha he
commitee conduced boh beore and afer heir public disclosure Raher I am speaking o he
numerous lesser allegaions agains nominees Bork Kennedy Souer and Thomas which he mosexreme commitee criics say we have done oo litle o pursue
Some examples o wha hese criics waned o see us delve ino come o mind Judge Bork had his
video renal records exhumed and sudied or possible renal o pornographic films Judge Souer has
his marial saus quesioned and el obligaed o produce ex-girlriends o esiy o his viriliy Judge
Thomas was assauled by a whispering campaign ha spread unsubsaniaed rumors o abou he
cause o he end o his firs marriage
Each ime he airing o hese charges enraged Republican allies o hese nominees who considered
he charges unair and a violaion o heir righ o privacy And each ime when he commitee--a my
direcion--reused o explore hese awdry rumors he more exreme criics o our process grew more
and more rusraed wih he resuls
This was anoher ension which came o a head during he Thomas nominaion and which exploded
when Proessor Hillrsquos charges were made public
To sum up hen The confirmaion process launched in 1987--an atemp o provide a means or dealing
wih he Reagan-Bush campaign o ransorm he Supreme Cour ideologically a a ime when hose
ideological views lacked public suppor--has been orn asunder The process lacks he sor o broad-
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BIDEN RULES
based suppor ha could make i work and is credibiliy has been slowly eroded by he criicism i has
received rom boh liberal and conservaive ideologues
A legiimae process ha was buil in good aih o ideniy and confirm consensus nominees has been
desroyed by many o he same corrosive influences ha have so devasaed our Presidenial poliics
and our naional dialog on public affairs
Consequenly i is my view ha--paricularly i he realiy o divided governmen during a ime o grea
change a he Cour coninues in he nex adminisraion--uure confirmaions mus be conduced
differenly han he preceding ones The pressures and ensions on he exising process--which
exploded during he Thomas nominaion figh--make a resoraion o wha came beore Judge Thomasrsquo
nominaion--even i i was desirable--a pracical impossibiliy
THE UNIQUE HISTORY OF ELECTION YEAR NOMINATIONS
Having said ha we ace one immediae quesion Can our Supreme Cour nominaion and confirmaion
processes so racked by discord and biterness be repaired in a Presidenial elecion year Hisoryeaches us ha his is exremely unlikely
Some o our Naionrsquos mos biter and heaed confirmaion fighs have come in Presidenial elecion years
The bruising confirmaion figh over Roger Taneyrsquos nominaion in 1836 he Senaersquos reusal o confirm
our nominaions by Presiden Tyler in 1844 he single voe rejecions o nominees Badger and Black
by lameduck Presidens Fillmore and Buchanan in he mid-19h cenury and he narrow approvals o
Jusices Lamar and Fuller in 1888 are jus some examples o hese fighs in he 19h cenury
Overall while only one in our Supreme Cour nominaions has been he subjec o significan
opposiion he figure rises o one ou o wo when such nominaions are aced on in Presidenial
elecion years
In our own cenury here are wo paricularly poignan cases The 1916 confirmaion figh over Louis
D Brandeis one o Americarsquos grea juriss--a figh filled wih mean-spiried ani-Semiic atacks on he
nominee--is an example o how elecion year poliics can pollue Senae consideraion o a disinguished
candidae And he 1968 filibuser agains Abe Forasrsquo nominaion--an assaul ha was launched by 19
Republican Senaors beore Presiden Johnson had even named Foras as his selecion--is similarly well
known by all who ollow his
Indeed many pundis on boh he lef and he righ quesioned our commiteersquos abiliy o airly process
he Bork nominaion--a year beore he 1988 campaign--wihou becoming enangled in Presidenialpoliics While I believe his concern was misplaced and ulimaely disproved i illusraes how ears o
such poliicizaion can undermine confidence in he confirmaion process
Moreover he radiion agains acing on Supreme Cour nominaions in a Presidenial year is paricularly
srong when he vacancy occurs in he summer or all o ha elecion season
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BIDEN RULES
Thus while a ew Jusices have been confirmed in he summer or all o a Presidenial elecion season
such confirmaions are rare--only five imes in our hisory have summer or all confirmaions been
graned wih he laes--he laes--being he Augus 1846 confirmaion o Jusice Rober Grier
In ac no Jusice has ever been confirmed in Sepember or Ocober o an elecion year--he sor o iming
which has become sandard in he modern confirmaion process Indeed in American hisory he onlyatemp o push hrough a Sepember or Ocober confirmaion was he ailed campaign o approve Abe
Forasrsquo nominaion in 1968 I canno believe anyone would wan o repea ha experience in odayrsquos climae
Moreover o he five Jusices who were confirmed in he summer o an elecion year all five were
nominaed or vacancies ha had arisen beore he summer began Indeed Jusice Grierrsquos Augus
confirmaion was or a vacancy on he Cour ha was more han 2 years old as was he July confirmaion
o Jusice Samuel Miller in 1862
Thus more relevan or he siuaion we could be acing in 1922 is his saisic six Supreme Cour
vacancies have occurred in he summer or all o a Presidenial elecion year and never--no once--has
he Senae confirmed a nominee or hese vacancies beore he November elecion
In our o hese six cases--in 1800 1828 1864 and 1956--he Presiden himsel wihheld making a
nominaion unil afer he elecion was held
In boh o he wo insances where he Presiden did insis on naming a nominee under hese circumsances
Edward Bradord in 1952 and Abe Foras in 1968 he Senae reused o confirm hese selecions
Thus as we ener he summer o he Presidenial elecion year i is ime o consider wheher his
unbroken sring o hisorical radiion should be broken In my view wha hisory suppors common
sense dicaes in he case o 1992 Given he unusual rancor ha prevailed in he Thomas nominaion he
need or some serious reevaluaion o he nominaion and confirmaion process and he overall level o
biterness ha sadly inecs our poliical sysem and his Presidenial campaign already i is my view ha
he prospecs or anyhing bu conflagraion wih respec o a Supreme Cour nominaion his year are
remoe a bes
O Presidens Reaganrsquos and Bushrsquos las seven selecions o he Cour wo were no confirmed and wo
more were approved wih he mos voes cas agains hem in he hisory o he Unied Saes o America
We have seen how Mr Presiden in my view poliics has played ar oo large a role in he Reagan-Bush
nominaions o dae One can only imagine ha role becoming overarching i a choice were made his
year assuming a Jusice announced omorrow ha he or she was sepping down
Should a Jusice resign his summer and he Presiden move o name a successor acions ha will occur
jus days beore he Democraic Presidenial Convenion and weeks beore he Republican Convenion
mees a process ha is already in doub in he minds o many will become disrused by all Senae
consideraion o a nominee under hese circumsances is no air o he Presiden o he nominee or o
he Senae isel
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BIDEN RULES
Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i
will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom
boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns
omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should
consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil
afer he November elecion is compleed
The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy
ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way
o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary
Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer
he poliical campaign season is over
I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns
we will have seen in modern imes
I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i
was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be
permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in
he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic
conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion
mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral
o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion
Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as
I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he
Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and
he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is
nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks
In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain
Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise
beween he branches would no be sofened bu raher he prospecs or such compromise would be
naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process
migh be changed in he nex adminisraion wheher i is a Democra or a Republican
I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive
social agenda ha he Congress and he public have rejeced In his way all he paricipans in he
process can be clear well in advance o how I inend o approach any uure nominaions
Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he
nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o
be chairman in he nex adminisraion
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BIDEN RULES
I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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BIDEN RULES
based suppor ha could make i work and is credibiliy has been slowly eroded by he criicism i has
received rom boh liberal and conservaive ideologues
A legiimae process ha was buil in good aih o ideniy and confirm consensus nominees has been
desroyed by many o he same corrosive influences ha have so devasaed our Presidenial poliics
and our naional dialog on public affairs
Consequenly i is my view ha--paricularly i he realiy o divided governmen during a ime o grea
change a he Cour coninues in he nex adminisraion--uure confirmaions mus be conduced
differenly han he preceding ones The pressures and ensions on he exising process--which
exploded during he Thomas nominaion figh--make a resoraion o wha came beore Judge Thomasrsquo
nominaion--even i i was desirable--a pracical impossibiliy
THE UNIQUE HISTORY OF ELECTION YEAR NOMINATIONS
Having said ha we ace one immediae quesion Can our Supreme Cour nominaion and confirmaion
processes so racked by discord and biterness be repaired in a Presidenial elecion year Hisoryeaches us ha his is exremely unlikely
Some o our Naionrsquos mos biter and heaed confirmaion fighs have come in Presidenial elecion years
The bruising confirmaion figh over Roger Taneyrsquos nominaion in 1836 he Senaersquos reusal o confirm
our nominaions by Presiden Tyler in 1844 he single voe rejecions o nominees Badger and Black
by lameduck Presidens Fillmore and Buchanan in he mid-19h cenury and he narrow approvals o
Jusices Lamar and Fuller in 1888 are jus some examples o hese fighs in he 19h cenury
Overall while only one in our Supreme Cour nominaions has been he subjec o significan
opposiion he figure rises o one ou o wo when such nominaions are aced on in Presidenial
elecion years
In our own cenury here are wo paricularly poignan cases The 1916 confirmaion figh over Louis
D Brandeis one o Americarsquos grea juriss--a figh filled wih mean-spiried ani-Semiic atacks on he
nominee--is an example o how elecion year poliics can pollue Senae consideraion o a disinguished
candidae And he 1968 filibuser agains Abe Forasrsquo nominaion--an assaul ha was launched by 19
Republican Senaors beore Presiden Johnson had even named Foras as his selecion--is similarly well
known by all who ollow his
Indeed many pundis on boh he lef and he righ quesioned our commiteersquos abiliy o airly process
he Bork nominaion--a year beore he 1988 campaign--wihou becoming enangled in Presidenialpoliics While I believe his concern was misplaced and ulimaely disproved i illusraes how ears o
such poliicizaion can undermine confidence in he confirmaion process
Moreover he radiion agains acing on Supreme Cour nominaions in a Presidenial year is paricularly
srong when he vacancy occurs in he summer or all o ha elecion season
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BIDEN RULES
Thus while a ew Jusices have been confirmed in he summer or all o a Presidenial elecion season
such confirmaions are rare--only five imes in our hisory have summer or all confirmaions been
graned wih he laes--he laes--being he Augus 1846 confirmaion o Jusice Rober Grier
In ac no Jusice has ever been confirmed in Sepember or Ocober o an elecion year--he sor o iming
which has become sandard in he modern confirmaion process Indeed in American hisory he onlyatemp o push hrough a Sepember or Ocober confirmaion was he ailed campaign o approve Abe
Forasrsquo nominaion in 1968 I canno believe anyone would wan o repea ha experience in odayrsquos climae
Moreover o he five Jusices who were confirmed in he summer o an elecion year all five were
nominaed or vacancies ha had arisen beore he summer began Indeed Jusice Grierrsquos Augus
confirmaion was or a vacancy on he Cour ha was more han 2 years old as was he July confirmaion
o Jusice Samuel Miller in 1862
Thus more relevan or he siuaion we could be acing in 1922 is his saisic six Supreme Cour
vacancies have occurred in he summer or all o a Presidenial elecion year and never--no once--has
he Senae confirmed a nominee or hese vacancies beore he November elecion
In our o hese six cases--in 1800 1828 1864 and 1956--he Presiden himsel wihheld making a
nominaion unil afer he elecion was held
In boh o he wo insances where he Presiden did insis on naming a nominee under hese circumsances
Edward Bradord in 1952 and Abe Foras in 1968 he Senae reused o confirm hese selecions
Thus as we ener he summer o he Presidenial elecion year i is ime o consider wheher his
unbroken sring o hisorical radiion should be broken In my view wha hisory suppors common
sense dicaes in he case o 1992 Given he unusual rancor ha prevailed in he Thomas nominaion he
need or some serious reevaluaion o he nominaion and confirmaion process and he overall level o
biterness ha sadly inecs our poliical sysem and his Presidenial campaign already i is my view ha
he prospecs or anyhing bu conflagraion wih respec o a Supreme Cour nominaion his year are
remoe a bes
O Presidens Reaganrsquos and Bushrsquos las seven selecions o he Cour wo were no confirmed and wo
more were approved wih he mos voes cas agains hem in he hisory o he Unied Saes o America
We have seen how Mr Presiden in my view poliics has played ar oo large a role in he Reagan-Bush
nominaions o dae One can only imagine ha role becoming overarching i a choice were made his
year assuming a Jusice announced omorrow ha he or she was sepping down
Should a Jusice resign his summer and he Presiden move o name a successor acions ha will occur
jus days beore he Democraic Presidenial Convenion and weeks beore he Republican Convenion
mees a process ha is already in doub in he minds o many will become disrused by all Senae
consideraion o a nominee under hese circumsances is no air o he Presiden o he nominee or o
he Senae isel
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BIDEN RULES
Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i
will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom
boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns
omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should
consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil
afer he November elecion is compleed
The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy
ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way
o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary
Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer
he poliical campaign season is over
I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns
we will have seen in modern imes
I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i
was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be
permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in
he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic
conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion
mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral
o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion
Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as
I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he
Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and
he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is
nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks
In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain
Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise
beween he branches would no be sofened bu raher he prospecs or such compromise would be
naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process
migh be changed in he nex adminisraion wheher i is a Democra or a Republican
I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive
social agenda ha he Congress and he public have rejeced In his way all he paricipans in he
process can be clear well in advance o how I inend o approach any uure nominaions
Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he
nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o
be chairman in he nex adminisraion
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BIDEN RULES
I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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BIDEN RULES
Thus while a ew Jusices have been confirmed in he summer or all o a Presidenial elecion season
such confirmaions are rare--only five imes in our hisory have summer or all confirmaions been
graned wih he laes--he laes--being he Augus 1846 confirmaion o Jusice Rober Grier
In ac no Jusice has ever been confirmed in Sepember or Ocober o an elecion year--he sor o iming
which has become sandard in he modern confirmaion process Indeed in American hisory he onlyatemp o push hrough a Sepember or Ocober confirmaion was he ailed campaign o approve Abe
Forasrsquo nominaion in 1968 I canno believe anyone would wan o repea ha experience in odayrsquos climae
Moreover o he five Jusices who were confirmed in he summer o an elecion year all five were
nominaed or vacancies ha had arisen beore he summer began Indeed Jusice Grierrsquos Augus
confirmaion was or a vacancy on he Cour ha was more han 2 years old as was he July confirmaion
o Jusice Samuel Miller in 1862
Thus more relevan or he siuaion we could be acing in 1922 is his saisic six Supreme Cour
vacancies have occurred in he summer or all o a Presidenial elecion year and never--no once--has
he Senae confirmed a nominee or hese vacancies beore he November elecion
In our o hese six cases--in 1800 1828 1864 and 1956--he Presiden himsel wihheld making a
nominaion unil afer he elecion was held
In boh o he wo insances where he Presiden did insis on naming a nominee under hese circumsances
Edward Bradord in 1952 and Abe Foras in 1968 he Senae reused o confirm hese selecions
Thus as we ener he summer o he Presidenial elecion year i is ime o consider wheher his
unbroken sring o hisorical radiion should be broken In my view wha hisory suppors common
sense dicaes in he case o 1992 Given he unusual rancor ha prevailed in he Thomas nominaion he
need or some serious reevaluaion o he nominaion and confirmaion process and he overall level o
biterness ha sadly inecs our poliical sysem and his Presidenial campaign already i is my view ha
he prospecs or anyhing bu conflagraion wih respec o a Supreme Cour nominaion his year are
remoe a bes
O Presidens Reaganrsquos and Bushrsquos las seven selecions o he Cour wo were no confirmed and wo
more were approved wih he mos voes cas agains hem in he hisory o he Unied Saes o America
We have seen how Mr Presiden in my view poliics has played ar oo large a role in he Reagan-Bush
nominaions o dae One can only imagine ha role becoming overarching i a choice were made his
year assuming a Jusice announced omorrow ha he or she was sepping down
Should a Jusice resign his summer and he Presiden move o name a successor acions ha will occur
jus days beore he Democraic Presidenial Convenion and weeks beore he Republican Convenion
mees a process ha is already in doub in he minds o many will become disrused by all Senae
consideraion o a nominee under hese circumsances is no air o he Presiden o he nominee or o
he Senae isel
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BIDEN RULES
Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i
will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom
boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns
omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should
consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil
afer he November elecion is compleed
The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy
ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way
o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary
Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer
he poliical campaign season is over
I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns
we will have seen in modern imes
I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i
was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be
permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in
he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic
conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion
mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral
o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion
Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as
I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he
Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and
he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is
nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks
In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain
Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise
beween he branches would no be sofened bu raher he prospecs or such compromise would be
naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process
migh be changed in he nex adminisraion wheher i is a Democra or a Republican
I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive
social agenda ha he Congress and he public have rejeced In his way all he paricipans in he
process can be clear well in advance o how I inend o approach any uure nominaions
Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he
nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o
be chairman in he nex adminisraion
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BIDEN RULES
I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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BIDEN RULES
Mr Presiden where he Naion should be reaed o a consideraion o consiuional philosophy all i
will ge in such circumsances is parisan bickering and poliical posuring rom boh paries and rom
boh ends o Pennsylvania Avenue As a resul i is my view ha i a Supreme Cour Jusice resigns
omorrow or wihin he nex several weeks or resigns a he end o he summer Presiden Bush should
consider ollowing he pracice o a majoriy o his predecessors and no--and no--name a nominee unil
afer he November elecion is compleed
The Senae oo Mr Presiden mus consider how i would respond o a Supreme Cour vacancy
ha would occur in he ull hroes o an elecion year I is my view ha i he Presiden goes he way
o Presidens Fillmore and Johnson and presses an elecion-year nominaion he Senae Judiciary
Commitee should seriously consider no scheduling confirmaion hearings on he nominaion unil afer
he poliical campaign season is over
I sadly predic Mr Presiden ha his is going o be one o he biteres diries Presidenial campaigns
we will have seen in modern imes
I am sure Mr Presiden afer having utered hese words some will criicize such a decision and say i
was nohing more han an atemp o save he sea on he Cour in he hopes ha a Democra will be
permited o fill i bu ha would no be our inenion Mr Presiden i ha were he course o choose in
he Senae o no consider holding hearings unil afer he elecion Insead i would be our pragmaic
conclusion ha once he poliical season is under way and i is acion on a Supreme Cour nominaion
mus be pu off unil afer he elecion campaign is over Tha is wha is air o he nominee and is cenral
o he process Oherwise i seems o me Mr Presiden we will be in deep rouble as an insiuion
Ohers may re ha his approach would leave he Cour wih only eigh members or some ime bu as
I see i Mr Presiden he cos o such a resul he need o reargue hree or our cases ha will divide he
Jusices our o our are quie minor compared o he cos ha a nominee he Presiden he Senae and
he Naion would have o pay or wha would assuredly be a biter figh no mater how good a person is
nominaed by he Presiden i ha nominaion were o ake place in he nex several weeks
In he end his may be he only course o acion ha hisorical pracice and pracical realism can susain
Similarly i Governor Clinon should win his all hen my views on he need or philosophic compromise
beween he branches would no be sofened bu raher he prospecs or such compromise would be
naurally enhanced Wih his in mind le me sar wih he nominaion process and how ha process
migh be changed in he nex adminisraion wheher i is a Democra or a Republican
I seems clear o me ha wihin he Bush adminisraion he process o selecing Supreme Cournominees has become dominaed by he righ inen on using he Cour o implemen an ulraconservaive
social agenda ha he Congress and he public have rejeced In his way all he paricipans in he
process can be clear well in advance o how I inend o approach any uure nominaions
Wih his in mind le me sar wih he nominaion process and how ha process migh be changed in he
nex adminisraion and how I would urge o change i as chairman o he Judiciary Commitee were I o
be chairman in he nex adminisraion
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BIDEN RULES
I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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BIDEN RULES
I seems clear o me ha wihin he Bush adminisraion as I said he process has become dominaed
by he righ insead o using he Cour and seeking compromise As I deailed during he hearings and
he subsequen nominaion debae over Judge Thomasrsquo nominaion his agenda involves changing all
hree o he pillars o our modern consiuional law And I migh add he Presiden has a righ o hold
hese views Mr Presiden and he Presiden has a righ o ry o make his views prevail legislaively and
oherwise Bu le us make sure we know a leas rom my perspecive wha undamenal changes are
being sough
There are hree pillars o modern consiuional law ha are sough o be changed Firs i proposes o
reduce he high degree o proecion ha he Supreme Cour has given individual righs when hose
righs are hreaened by governmenal inrusion imperiling our reedom o religion speech and
personal libery--and I am no jus alking abou aborion
Second i proposes hose who share he Presidenrsquos view or his radical change o vasly increase he
proecion given o he ineres o propery when our sociey seeks o regulae he use o such propery
imperiling laws concerned wih he environmen worker saey zoning and consumer proecion
And he hird objecive ha is sough is o change a hird pillar o modern consiuional law I proposes
o radically aler he separaion o powers o move more power in our hree branches o Governmen
divided Governmen separaed Governmen o move more power o he execuive branch imperiling
he biparisan independen regulaory agencies and he modern regulaory Sae
As I noed beore effors o ransorm he confirmaion process ino a good-aih debae over hese
philosophic maters as was he Bork confirmaion process have been hwared by exremiss in boh
paries These are legiimae issues o debae Those who hold he view ha we should change hese
hree modern pillars o consiuional law have a righ o hold hese views o ariculae hem and have
hem debaed beore he American people Bu his debae has been hwared by exremiss in boh
paries and cynics who have urged nominees o atemp o conceal heir views o he greaes exen
possible And he Presiden unwilling o concede ha his agenda in hese hree areas is a odds wih he
will o he Senae and he American people seems deermined o coninue o ry o remake he Cour and
hereby remake our laws in his direcion
In ligh o his I can have only one response Mr Presiden Eiher we mus have a compromise in he
selecion o uure Jusices or I mus oppose hose who are a produc o his ideological nominaing process
as is he righ o ohers o conclude hey should suppor nominees who are a produc o his process
Pu anoher way i he Presiden does no resore he hisorical radiion o genuine consulaion beweenhe Whie House and he Senae on he Supreme Cour nominaion or insead resore he common
pracice o Presidens who chose nominees who srode he middle ground beween he divided poliical
branches hen I shall oppose his uure nominees immediaely upon heir nominaion
This is no a reques ha he Presiden relinquish any power o he Senae or ha he rerain rom exercising
any prerogaives he has as Presiden Raher i is my saemen ha unless he Presiden chooses o do so
I will no lend he power ha I have in his process o suppor he confirmaion o his selecion
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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BIDEN RULES
As I noed beore he pracice o many Presidens hroughou our hisory suppors my call or more
Execuive-Senae consulaions More undamenally he ex o he Consiuion isel is use o he
phrase advice and consenrsquo o describe he Senaersquos role in appoinmens demands greaer inclusion
o our views in his process While his posiion may seem conenious I believe i is nohing more han a
jusified response o he poliicizing o he nominaion process
To ake a common example he Presiden is ree o submi o Congress any budge ha he so chooses
He can submi one ha reflecs his conservaive philosophy or one ha sraddles he differences
beween his views and ours Tha is his choice Bu when he Presiden has aken he ormer course
no one has been surprised or ouraged when Democras like mysel have responded by rejecing he
Presidenrsquos budge ourigh
I he Presiden works wih a philosophically differing Senae or he moderaes his choices o reflec
he divergence hen his nominees deserve consideraion and suppor by he Senae Bu when
he Presiden coninues o ignore his difference and o pick nominees wih views a odds wih he
consiuens who eleced me wih an even larger margin han hey eleced him hen his nominees areno eniled o my suppor in any shape or orm
I migh noe parenheically Mr Presiden and le me be very specific i in his nex elecion he
American people conclude ha he majoriy o desks should be moved on ha side o he aisle here
should be 56 Republican Senaors insead o 56 Democraic Senaors 44 Democraic Senaors insead
o 56 or 57 Democraic Senaors and a he same ime i hey choose o pick Bill Clinon over George
Bush we will have a divided Governmen and I will say he same hing o Bill Clinon In a divided
Governmen he mus seek he advice o he Republican Senae and compromise Oherwise his
Republican Senae would be oally eniled o say we rejec he nominees o a Democraic Presiden
who is atemping o remake he Cour in a way wih which we disagree
As I say some view his posiion as conenious while ohers I suspec--in ac I know and he Presiding
Officer knows as well as I do--will say ha I am no being conenious enough They sugges ha
since he Cour has moved so ar o he righ already i is oo lae or a progressive Senae o accep
compromise candidaes rom a conservaive adminisraion They would argue ha he only people we
should accep are liberal candidaes which are no going o come nor is i reasonable o expec hem o
come rom a conservaive Republican Presiden
Bu I believe ha so long as he public coninues o spli is confidence beween he branches
compromise is he responsible course boh or he Whie House and or he Senae Thereore I sand
by my posiion Mr Presiden I he Presiden consuls and cooperaes wih he Senae or moderaes his
selecions absen consulaion hen his nominees may enjoy my suppor as did Jusices Kennedy and
Souer Bu i he does no as is he Presidenrsquos righ hen I will oppose his uure nominees as is my righ
Once a nominaion is made he evaluaion process begins Mr Presiden And here here has been a
dramaic change rom he Bork nominaion in 1987 o he Thomas nominaion in 1991
Le me sar wih his observaion In rerospec he acual evens surrounding he nominaion o Judge
Bork have been so misremembered ha observers have compleely overlooked one grea eaure o
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
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BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
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BIDEN RULES
hese evens Tha is in mos respecs he Bork nominaion served as an excellen model or how he
conemporary nominaion and confirmaion process and debae should be concluded and conduced
Shorly afer Judge Bork was nominaed afer sudying his records wriings and speeches I announced
my opposiion o his confirmaion and several oher members o he commitee did he same Wha
ensued was I hink an educaional and enlighening summer
I laid ou he basis or my posiion in wo major naional speeches and oher Senaors did likewise
The Whie House issued as hey should have a very deailed paper proposing o ouline Judge Borkrsquos
philosophy a group o respecive consulans o he commitee issued a response o his Whie House
paper and he adminisraion pu ou a response o ha response
While here were excesses in his debae as I menioned earlier by and large i was an exchange o
views and ideas beween wo major consiuional players in his conroversy he Presiden and he
Senae which he Naion could observe and hen evaluae
The all hearing hen was significan no as a dramaic specacle o see how Senaors would jockey orposiion on he nominaion bu o see he final ac o his debae Unorunaely hough hose o us who
announced our early opposiion o Judge Bork were roundly criicized by he media Major newspapers
accused me o rendering he verdic firs and rial laer or he nominee I say ha his was unorunae
because his criicism o our early posiion on he Bork nominaion has resuled in as I see i our
negaive consequences or he conormaion process
Firs i gave rise o a powerul myhology ha equaes confirmaion hearings o somehing closer o
rials han legiimae legislaive proceedings The resul has been in he end even more criicism or he
process when he hearings do no mee his arificial sandard o a rial
Confirmaion hearings are no rials We are no a cour we are a legislaive body They are
congressional hearings Senaors are no judges We are Senaors Our decision on a nominee is no
a neural ruling as a judge would render I is as he Consiuion designed i a poliical choice abou
values and philosophy
We should junk Mr Presiden his rial myhology and he atendan maters ha go wih i Arcane
debaes over which way he presumpion goes in he confirmaion process over wha he sandard
o review is over which side has he burden o proo all o hese erms and ideas are inep or our
decisionmaking on confirmaion as hey are or our decisionmaking on passing bills or voing on
consiuional amendmens
We do no apply a rial myhology in hose circumsances Mr Presiden
Second a second uninended and unorunae consequence o he criicism o early opposiion based
on specifically saed reasons The criicism o aking early sands on nominees has pushed Senaors
ou o he summer debae over confirmaion and lef ha debae o ohers mos especially he ineres
groups on he lef and he righ Insead o respeced Senaors on he lef and he righ arguing prior
o he hearing abou he philosophy o he nominee when we sood back ha vacuum was filled Mr
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 1824
17
BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
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18
BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
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19
BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
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BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
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21
BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
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22
BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2424
BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
7212019 Biden Rules
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17
BIDEN RULES
Presiden by he lef and he righ as is heir righ I migh add Bu hey are he only voices ha we heard
in he debae They shaped he debae Mr Presiden
Insead o an exchange o ideas hen he summer becomes Washingon a is wors The nominee
hunkers down wih brieers a he Jusice Deparmen preparing or he hearing as a ooball eam
prepares or a game waching films o previous hearings sudying he mannerisms o each Senaormemorizing quesions ha have been asked pracicing and rehearsing nonanswers Ouside he
wo branchesrsquo busy effors are underway o rom coaliions launch TV atack campaigns issue press
releases and shou loudly pas one anoher
This ransormaion hi is peak during he Thomas nominaion when by my coun here were wice as
many summer news sories abou how ineres groups were lining upon he nominaion han here were
abou he nomineersquos views As wih our Presidenial campaigns public atenion in he prehearing period
has been urned away rom a debae by principles abou real issues ino a superficial scruiny o a horse
race Is he nominee up is he nominee down oday And discussions among spin docors insiders and
pundis abou wha he chances are
The only way o move he ocus rom he acics o he confirmaion debae o he subsance o i is or
Senaors o ake our posiion on a nominaion i possible assuming we know he acs o he philosophy
or believe we know he acs relaing o he philosophy o he nominee and debae hem reely and
openly beore he hearing process begins
Where Senaors remain undecided abou he nominaion I hope more will do wha I did wih he Souer
and Thomas nominaions and ry o publicly address he issues o concern or confirmaion beore he
hearings ge underway o sand on he floor and say I do no know where he nominee sands on such
and such bu wha I wan o know as a Senaor is wha is his or her philosophy on Whaever i is ha is
o concern o he individual Member begin he debae on he issues because when we do no we have
learned his own he press ineres groups and poliical paries fill he vacuum The noion o 3 monhs
o silence in Washingon is somehing ha is no able o be oleraed by mos who live in Washingon
and who work in Washingon
So wha happens The vacuum is filled Mr Presiden by pundis lobbying groups ineres groups
ideological ringes o define he debae and dicaing he acics
Third Mr Presiden he aboo agains early opposiion o a nominee has creaed an imbalance in he
prehearing debae over he confirmaion or i seems ha no similar aboo exiss agains prehearing
suppor or a nominee
I have no read a single aricle heard a single commen ha when Senaor Smedlaprsquo sands up and says
I suppor he nominee ha he Presiden named 27 seconds ago no one says now ha is ourageous
how can ha woman or man make ha decision beore he hearing They all say oh ha is OK I is OK
o be or a nominee beore he hearing begins bu no o be agains he nominee
In he case o Judge Thomas while no Senaor announced his opposiion o confirmaion beore he hearing
sared a leas 30 Senaors announced heir suppor or he nominee beore he commitee firs me
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 1924
18
BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2024
19
BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2124
20
BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2224
21
BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2324
22
BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2424
BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 1924
18
BIDEN RULES
No Senaor said `I am opposedrsquo Thiry Senaors said hey were or as is heir righ by he way I am
no criicizing ha Thus my good riend Senaor Rudmanor Judge Souer and Senaor Danorh or
Judge Thomas along wih many oher Senaors became ouspoken advocaes as is heir righ and as
hey firmly believed became ouspoken advocaes or he confirmaion rom day one while no a single
Senaor spoke in opposiion
In my view such an imbalance is unhealhy and again pus oo much responsibiliy or and conrol over
he confirmaion debae in he hands o ineres groups insead o eleced officials
Fourh and perhaps leas obvious he aboo agains early opposiion o a nominee assuming ha
a Senaor knows enough o be opposed has conribued o making he confirmaion hearing ar oo
significan making he confirmaion hearing a ar oo significan orum or evaluaing he nominee
Conservaive criics o he modern hearing process ofen noe ha or he firs 125 years o our hisory-
-and hey are correc--we reviewed Supreme Cour nominaions wihou confirmaion hearing Ye wha
we ignore is ha he rejecion rae o nominees in he firs 125 years o our hisory was even higher and
he grounds o rejecion ar more parisan and ar less principled han i has been since he hearing
process began
In my view Mr Presiden confirmaion hearings no mater how long how ruiul how horough how
hones--no mater wha--confirmaion hearings canno alone provide a sufficien basis or deermining i
a nominee meris a sea on our Supreme Cour
Le me say ha again In my view confirmaion hearings no mater how long how ruiul how horough
canno alone provide a sufficien basis or deermining i a nominee meris a sea on our Supreme Cour
Here again he burden o he rial analogy unorunaely conuses he role o he hearing process insead
o elucidaing i As hey did beore here were confirmaion hearings Senaors and he public should
base heir deerminaion abou a nominee on his or her record o service wriings and speeches
background collecion and invesigaions a review o he nomineersquos experience in credenials and
he weighing o he views o he nomineersquos peers and colleagues Pu anoher way We have hearings
no o prove a case agains a nominee bu raher in an effor o be air o he nominee and o give ha
nominee he chance o explain his or her record and wriings beore he commitee Thus he hearings
can be he crowning jewel o he evaluaion process a final chance o clear up conusion or firm up sof
conclusions bu hey canno be he enire process isel as hey have come o be viewed
Anyhing we can do o broaden he base upon which Senaors make heir decisions will be a valuable
improvemen on he confirmaion process Having urged a lessening in he significance o he hearings
I noneheless wan o sugges some changes or his par o he process as well And here in his hird
area o reorm I have ocused on quesioning o he nominee a his or her confirmaion process As I alk
o people abou he confirmaion process Mr Presiden one o he quesions I am mos ofen asked is
Why do you no make he nominee answer he quesions I am sure he Presiding Officer has been asked
ha quesion 100 imes himsel Why do you no make he nominee answer he quesions
As I have said ime and again he choice abou wha quesions o ask belongs o us on he commitee
7212019 Biden Rules
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19
BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2124
20
BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2224
21
BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2324
22
BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2424
BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2024
19
BIDEN RULES
The choice abou wha quesions o answer belongs o he nominee Lacking any device o medieval
inquisiion we have no way as Senaors o make someone answer quesions
Having said ha hough I do no wan o undercu my srong displeasure wih wha has happened o
his aspec o he confirmaion process since he Bork hearings As mos people know Judge Bork had
a ull and horough exchange wih he commitee Afer his deea many expers on he confirmaionprocess came o associae his rankness wih he oucome Bu his is a alse lesson o he Bork
nominaion I believed hen and I believe now ha Judge Bork would have been rejeced by an even
larger margin had he been less orhcoming wih he commitee
Jusices Kennedy and Souer wih some excepions paricularly in he area o reproducive reedom were
likewise airly discursive in heir answers o our quesions and hey were overwhelmingly confirmed
In conras Judge Thomas who had he beginnings o a judicial philosophy ha was quie conservaive
decided no o be as orhcoming as were Jusices Kennedy and Souer Moreover because he writen
record o esablish his views was no as ully developed as Judge Borkrsquos Jusice Thomas concluded
ha he did no need o use he hearings as an opporuniy o explain his philosophy o garner suppor
nowihsanding as Bork did As a resul we saw in he Thomas hearings wha one o my colleagues
called a version o a `riualized Kabuki heaerrsquo
Commitee members asked increasingly complex and ricky quesions in an effor o parry he nomineersquos
increasingly complex and ricky dodges Perhaps some o he commitee asked quesions which we
knew he nominee would no answer--could no answer--o gain advanage Perhaps he nominee
dodged some quesions which we knew he could or should answer bu chose no o because he saw
litle cos in i
In he end each side sruggled or advanage in a debae ha generaed ar more hea han ligh
The PRESIDING OFFICER The Chair inorms he Senaor ha he hour and a quarer previously se aside
has expired
Mr BIDEN Mr Presiden I ask unanimous consen ha I be able o proceed or 15 more minues
The PRESIDING OFFICER Is here objecion
Mr ADAMS Reserving he righ o objec and I shall no objec could he Senaor make ha unil 1015
Mr BIDEN Yes
Mr ADAMS I hank he Senaor
The PRESIDING OFFICER Wihou objecion he ime o he Senaor rom Delaware is exended unil he
hour o 1015
Mr BIDEN Mr Presiden i we are o reocus he confirmaion process so i pivos on he nomineersquos
philosophy insead o quesions o his personal conduc he hearings mus be perormed or ull
exploraion o ha philosophy Conservaives canno have i boh ways hey canno ask us o rerain rom
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2124
20
BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2224
21
BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2324
22
BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2424
BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2124
20
BIDEN RULES
rigorous quesioning o judicial philosophy and insead ocus on he nomineersquos personal background
as hey did during he early phases o he Thomas nominaion and hen complain loudly when his
examinaion o personal background urns ino a biter exploraion o he nomineersquos conduc and characer
This urn in he process was he produc o heir disdain or our quesioning on jurisprudenial views
more han anyhing else The Senae canno orce nominees o answer our quesions Bu as I voedagains Judge Thomasrsquo confirmaion in par because o his evasiveness I will no counenance any
similar evasion on he par o any uure nominees
To make his poin as clearly and as sharply as possible I wan o sae he ollowing In he uure I
will be paricularly rigorous in ensuring ha every quesion I ask will be one ha I believe a nominee
should answer And i he nominee declines o do so I will--unless oherwise assured abou a nomineersquos
approach o he area in quesion--oppose ha nominee
Again his is no o say ha all nominees should have o answer every quesion direced a hem by
he commitee in he pas Some reusals such as hose by Jusice Marshall during his confirmaion
hearing were wholly proper I am no saying ha I will voe agains any nominee who reuses o answer
any quesion by any Senaor Bu i we are o render his process and redeem i give i clear guidelines
and rules ha we all know and make i ocus more on philosophy and less on personaliy hen he basic
principle I have laid ou mus be included in my view in any o he uure hearings As a Senaor I canno
make a nominee answer quesions ha I deem appropriae or imporan bu I need no voe or one who
reuses o do so eiher and I will no
Fourh we mus address he manner in which he commitee handled invesigaive maters concerning
Supreme Cour nominees No aspec o he confirmaion process has been more widely discussed han
our handling o Proessor Hillrsquos allegaions agains Judge Thomas beore hose charges became public
Many have quesioned wheher we ook Proessor Hillrsquos charges seriously invesigaed hem horoughly
and disseminaed hem appropriaely
Mr Presiden in my view we did all o hese hings wihin he limis ha Proessor Hill hersel placed
upon us
I wresled a lengh wih he difficul decisions we aced We can debae hese anguishing choices over
and over again Should we have overridden Proessor Hillrsquos wishes or confidenialiy Should we have
pushed her o go public wih her charges even i she did no choose o do so
Well Mr Presiden people o good conscience can differ over hese dilemmas we aced Bu in my view
he anger o he commiteersquos handling o his mater goes ar beyond how we resolve hese difficul
quesions As I see i Mr Presiden he firesorm surrounding Ania Hillrsquos charges is an undersandable
rage ueled by mispercepion o he acs and ignied by disgus wih he way in which Republican
Senaors quesioned Proessor Hill and Judge Thomas a his phase o he hearings
Bu even ha alone does no explain i or his anger is rooed Mr Presiden a botom in a jusifiable
rusraion wih a lack o represenaion o women in our poliical sysem Many Americans were and
sill are properly mad ha here were no emale members o he Judiciary Commitee when we heard
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2224
21
BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2324
22
BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2424
BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2224
21
BIDEN RULES
Proessor Hillrsquos charges I or one join hese people in he movemen o make he 1992 elecion a
waershed on his ron
And ye here is sill a bigger issue a sake Mr Presiden or he public oucry over hese hearings was
no abou Clarence Thomas and no abou Ania Hill a is roo
I was abou years o resenmen by women or he reamen hey have received They have suffered
rom men in he workplace in he schools and in he srees and a home or oo long I was abou a
massive power sruggle going on in his condiion a power sruggle beween women and men beween
he majoriy and minoriies These are issues ha deeply divide us as a naion--issues o gender race
and power--issues ha were ron and cener a hose dramaic hearings las all
I believe our handling o Proessor Hillrsquos charges prior o heir public disclosure was proper Bu I also
believe ha here are some hings we should do differenly in he uure or he purposes o improving
public confidence in our handling o invesigaive maters
Firs I do no wan he commitee ever again o be placed in he awkward posiion o possessing
inormaion abou a Supreme Cour nominee which i has pledged o keep confidenial rom oher
Members o he Senae as we did wih Proessor Hillrsquos charges
In he uure all sources will be noified ha any inormaion obained by he commitee will be placed
in he FBI file on he nominee and shared on ha confidenial basis wih all Senaors all 100 Senaors
beore he Senae voes on a Supreme Cour nominaion
Second o ensure ha all Senaors are aware o any charges in our possession he commitee will hold
closed confidenial briefing sessions concerning all Supreme Cour nominees in he uure
All Senaors will be invied under rigorous resricions o proec confidenialiy o inspec all documens
and repors ha we compile
Third because ulimaely he quesion wih respec o invesigaions o a Supreme Cour nominee is he
credibiliy and characer o ha nominee in he uure i as long as I am chairman he commitee will
rouinely conduc a closed session wih each nominee o ask ha nominee--ace-o-ace on he record
under oah--abou all invesigaive charges agains ha person
This hearing will be conduced in all cases even where here are no major invesigaive issues o be
resolved so ha he holding o such hearing canno be aken o demonsrae ha he commitee hasreceived adverse confidenial inormaion abou he nominee The ranscrips o ha session will be par
o he confidenial record o he nominaion made available wih he FBI repor o all Senaors
No doub hese rules oo can be criicized Frankly I have labored over his or he beter par o a year
and I hink here are no easy answers when quesions o airness horoughness civil liberies and he
uure o he Cour collide under he glaring klieg lighs o elevision cameras Oher changes oo may
be needed and I shall consider hem as hey are proposed
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2324
22
BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2424
BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2324
22
BIDEN RULES
Bu I hope ha hese hree seps will increase confidence in our invesigaive procedures and he
seriousness wih which we ake such maters as par o he confirmaion process
Le me conclude now Mr Presiden wih a painul ac The picure I have pained oday abou he sae
o he confirmaion process and he uure o our Supreme Cour is largely negaive I am araid ha my
one is as i mus be
For hough my undamenal opimism abou his counry remains unshaken I know ha he publicrsquos
confidence in our insiuions is no Americans believe ha heir Presiden is ou o ouch wih heir lives heir
Congress is ou o line wih heir ehical sandards and heir Supreme Cour is ou o sync wih heir views
I canno predic wheher he curren poliical season will be he firs sep in resoring los confidence
in our insiuions or he final ac in shatering i I only know ha when his year is over--whoever wins
conrol o he Whie House and he Senae his November--rebuilding rus beween he American
people and heir Governmen mus be a preeminen goal
The confirmaion process is an imporan componen o such a reorm agenda or hree reasons Firsi is a highly visible public ac More people wached he Thomas confirmaion hearings han any ac o
American governance ever in our hisory As a resul ciizensrsquo percepions o he confirmaion process
prooundly color heir percepions o heir Governmen as a whole
Second he confirmaion process is he one place where all hree o our branches come ogeher The
Presiden and he Senae decide joinly wheher a paricular person will become a member o he Cour
Thus he confirmaion process asks he quesion Can he branches uncion ogeher as a governmen
Tha is a vial quesion o he American people Mr Presiden and how he confirmaion process does
much o shape heir sense o he answer o ha quesion
And hird he confirmaion process a is bes is a debae over he mos undamenal issues ha shape
our sociey a debae abou he naure o our Consiuion in boh he lieral and symbolic sense Wha
kind o counry are we Mr Presiden Wha righs do we respec Wha powers do we cede o he
Governmen These are he quesions ha he confirmaion process should orce us o ask
However his process operaes our insiuions will endure Bu unless his process is repaired unless all
hree branches ake heir responsibiliies o i o each oher and o he American people and ake hem
seriously he credibiliy o hese insiuions will coninue o suffer
To some his may be o litle concern Indeed some may be quiely pleased o see he public urher lose
aih in is Governmen
For hose who like I sill believe ha he Governmen can be he agen or social change ha our
insiuions can be harnessed o make our Naion more jus sae and prosperous he growing division
beween he American people and heir Governmen is a dishearening developmen
7212019 Biden Rules
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BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime
7212019 Biden Rules
httpslidepdfcomreaderfullbiden-rules 2424
BIDEN RULES
For unless ha undamenal rus is resored here is no hope ha he American people will pu
confidence in heir eleced officials o rebuild our economy o provide or he needs o our children o
deal wih he ailures o our healh care and educaion sysems and o clean up our environmen and our
inner ciies
This a botom Mr Presiden is wha is a sake in reorming he confirmaion process For he crisiso confidence ha plagues ha process is sympomaic o he crisis o confidence which plagues our
Governmen and insiuions a large
Mr Presiden ogeher we mus resolve his crisis and resore he bond o rus ha has been severed
Nohing we can do in he nex 6 weeks 6 monhs or 6 years is more imporan or he long-erm course
o our poliical sysem and our counry
This is our challenge Mr Presiden and we mus ac oday
I hank my colleagues or heir indulgence and heir ime