Reply #26: Biden - I was just reading some of the comments on the Senate floor

[karynnj]

and was surprised - though I knew it at the time that there were just 2 women Senators. I was also reminded that initially they wanted to ram through a vote before most Senators (all not on the committee ) knew much of anything about Anita Hill. Kerry was already going to vote "no", for a reason he has sited many times since - Thomas refused to give straight answers on his opinions on nearly all issues. This is interesting for 2 reasons - one, because you can see that time really has changed on woman's issues and how bad Thomas really could already be seen to be.

Here is a Kerry speech after he asked that this be aired.

Mr. KERRY. Mr. President, I listened to the Senator from Utah suggest that we ought to look at the full record, and that is exactly what this Senator would like to do. But I do not think there is a full record. I think the Senator has even evidenced the fact that there is not a full record by citing telephone calls that are outside of the record that has been supplied by the committee.

Now, the Senator defends the committee and the Senator suggests that somehow what is happening here is an attack on the committee. I do not agree with that. I do not think this is an attack on the committee. We are where we are. This is burst on the scene because an individual, an American citizen, a law professor, a woman who alleges that she suffered this indignity has stood up publicly and said so. She has claimed that she did so out of frustration with her inability to get these facts in front of the committee.

Now, I am not on the committee. But as an individual Senator called on to vote on a lifetime appointment to the Court, I am having trouble understanding why we cannot find a few days to sort out the veracity of this situation and these charges.

Now, I heard the Senator from Utah use words like, `I don't know why this kind of stuff appears,' or `whether this is a trick,' and yesterday the word `garbage' was used.

Now, I have not been here this morning. I just arrived.

I came in from the airport. I came to floor because I was reading the newspaper and I was listening to people talk about this and hearing reports. Frankly, I just had a personal reaction to what was going on.

Now, I understand there have been some exchanges in the course of the morning here, but it struck me as I looked at this not in Washington, from outside of the beltway, that the Senate is on trial in a sense. Like it or not, we are there. That is where we find ourselves. And the question is whether or not we are going to provide a full record, whether or not we are willing to be temperate and supposedly as deliberative as this body holds itself out to be and make a judgment about what has happened here.

I must say, Mr. President, that I suppose the Senate is going to go through some sort of lurching public agony over what it is going to do. I do not think we ought to struggle very hard with this. I do not think the decision is that complicated.

If indeed, as the Senator from Utah said, most Senators made up their minds, and they are not going to be swayed, what on Earth harm will there be to take a couple of days to make judgments about this issue, so people will feel there is a fair process and a fair hearing?

It seems to me that the simple, straightforward, proper, appropriate, right thing to do in the U.S. Senate is to suggest a few days' delay in order to gather a full record, and let those who come back, who have already made up their mind and do not want to look at the record, come down and cast their vote. They can always cast their vote. But you cannot always redress the harm that will be done by not maintaining a sufficient process here.

I just think not to delay would be an extraordinary affront to the average person's sense of right and wrong. Even for Judge Thomas , incidentally. I do not know what is true and what is not true here. It seems to me that Judge Thomas , having nothing to fear, having confidence in his own behavior, recognizing the importance of a position on the Supreme Court, and wanting to go

to that Court with the full measure of the confidence of this country, ought to be willing to stand up himself and say: Let this be properly aired. I want to go to that court with the appropriate judgment of the U.S. Senate, not with a stain on my nomination.

Where is Judge Thomas in this process? Many people are answering for him, but he is not on the record answering for himself. It seems to me that one would expect no less from a judge, let alone a judge who expects to go to the Supreme Court of the United States. Let the facts be heard. That is what the jurisprudential process of this country is about.

If we are blocked from having these charges examined because of a lack of consent by some Member of the Senate to have them properly aired, then the entire Senate, I think, will carry responsibility for that, and we will ridicule ourselves; we will ridicule the process of this confirmation; we will put a stain on the Senate and the nominee, and we will add yet another in an increasing list of actions and inactions that make the Senate just a little less respected, and perhaps a little more irrelevant.

People across America are looking at the Congress of the United States today, and they really wonder about all this. They wonder if we are in touch and capable of making decisions that are so normal and in their interests and with common sense. Here is a chance to prove that we do listen, that we have that measure of common sense, that we do understand, that we do care, and that we have a capacity to be sensitive and not so caught up in our parliamentary ridiculousness that we cannot even act on the real needs and demands of people.

The Senator kept quoting, `How is someone supposed to behave who is sexually harassed?' I do not know fully what that standard is. I suspect that some of the same standards that we have applied in exonerating Judge Thomas' behavior on certain occasions, because of where he came from and how he rose up, ought to properly be applied to Professor Hill. And I think that one can well imagine what it is like for a woman in the workplace--in a male workplace, I might add, by and large--who feels that there is a need to get along and not necessarily

cause ripples. It is tough to take on a superior. It is particularly tough to take on a judge. And it is very difficult, under any circumstances, for anyone to stand up and let themselves be exposed to that.

I do not know the veracity. I think the Senator from Utah has raised some very legitimate questions. But, incidentally, he has done so in a way some might consider a countersmear. If indeed there is a smear against Judge Thomas , then what is it about when you read a letter impugning the character of Professor Hill on the floor? She is not here to answer that. That is precisely the process that ought to be put in place.

I am not going to make any judgments about whether or nor this incident took place. I do not think any of us can. I think it is inappropriate for us to vote making that judgment on the basis of an incomplete record. I think it is precisely the absence of the full record that mandates that the Senate look at this. Who knows about the accuracy?

But I must say that it is not the accuracy of those accusations that is at issue there, I submit to the Senator. It is the relationship of 98 men in the U.S. Senate to the majority of the citizens of this Nation--women. And whether or not we are capable of saying that when one woman stands up and suggests this--not because she volunteered it--but because the Senate committee came to her, and she felt they were not listening, whether we are now going to listen. That is what it is about. Are we going to listen?

I do not think we can let the Senate be perceived as--let alone actually be doing it--running roughshod over this process. It seems to me even less so when it involves a nominee to the Supreme Court of the United States.

So I ask my colleagues whether a few days' delay are too much to ask for a lifetime's ability to sit, untarnished, on the Supreme Court of the United States; are a few days' delay too much to ask to guarantee or simply to fight for the reputation of the U.S. Senate?

In the end, what is at stake here is the integrity of the Senate, its sensitivity, its awareness, and its judgment, its self-respect, if you will.

Maybe, in the end, we should not be surprised that 98 men who presume to make judgments about what women can do with their own bodies, that we are going to have trouble making the correct judgment about what men are permitted to ask women to do with their bodies in the workplace. It might be too much to expect us to do that. But that is exactly the question that is on the table before the Senate right now.

It seems to me that none of this has to be. We do not have to have this contentiousness. We do not have to have this division. We do not have to have doubts about the Senate. We do not have to have accusations of liberal versus conservative plots. We do not have to have smears. We can elevate this thing to a quiet, judicious process, where the committee hears from those, makes a judgment, and submits it to the Senate, and Senators who are interested in finding out exactly what the facts are here can make an appropriate judgment.

Having said that, Mr. President, I hope that the Senate can find a way to do that. There are many reasons.

Incidentally, I did not even decide what I was going to do with respect to Judge Thomas until this weekend. I did that purposefully, because I wanted to read the record. I wanted to examine exactly what my colleagues on the committee had said about it. It is only after looking at that that I came to the conclusion I was going to vote against it--not for this reason, but for a lot of other reasons. And that is a separate speech, I suppose. I had originally come to the floor intending to make that right now.

But what bothers me the most about this nomination is the fact that I genuinely do not know where Judge Thomas stands on a host of fundamental issues--not abortion, but a host of issues of jurisprudence--let alone whether he represents a potentially poor, fair, good, or great Supreme Court Justice. I cannot reach that judgment. I simply cannot reach that judgment, because Judge Thomas has chosen a path that was purposefully designed to deny us essential information that is necessary to make that judgment.

Many of us have remarked in the past on how frustrating the hearing process is today. It is simply impossible to get a sense of who people are, what they really feel about the responsibilities of the position.

I will tell you something. All of us who have had the job interviews cannot imagine hiring somebody who would have answered questions the way Judge Thomas did in those hearings. If all somebody said in response to questions when they walked into our office for a job was, `Well, I do not, I do not recall, I have no idea, I do not have a thought about that,' anybody who said that to us in an interview would have been offered the door as fast as one could find it.

But, increasingly, that is all we get from people who come before us for the Supreme Court of the United States. In area after area of the law, Judge Thomas chose not to answer questions from Senators on the Judiciary Committee with

responses that were almost devoid of content or meaning. In an obvious attempt to avoid controversy, he took the position that he could not comment on any issue that might come before the Supreme Court as a case during his tenure. But then he extrapolated and used that as a rationale for not even answering questions about how he felt about cases that are settled law, on matters where stare decisis has set in long ago.

It seems to me that we should not ratify, as Senators, an advice and consent process that submits itself to that kind of simplicity or avoidance. The judge suggested that it is important for judges not to have agendas, not to have strong ideology or ideological views, describing them as baggage that a nominee should not take to the Supreme Court.

But the trouble is dozens of previous statements by the judge on a host of critical issues provide exactly the very kind of baggage that he suggested you should not have, and regrettably his approach to the confirmation hearings left him saying practically nothing that would permit us to understand whether or not that baggage had truly been left behind.

Instead, Senators were answered by Judge Thomas with nonresponses. Let me just give a few. Abortion, obviously, is the famous one, and I do not expect him to tell me what he is going to do on Roe versus Wade; I understand that. But it seems to me there are some fundamentals beyond that which might have been discussed in terms of past cases.

On questions about meetings, positions, and discussions on South Africa and apartheid, Judge Thomas said:



I have no recollection. I simply don't remember.

On a question regarding his past statements that:

Congress was a coalition of elites which failed to be a deliberative body that legislates for the common good of the public interest.

He said:

I can't, Senator, remember the total context of that, but I think I said that and I think I said it in the context of saying that Congress was at its best when it was legislating on great moral issues. Now, I could be wrong.

On a question about the right of privacy and the 14th amendment, Judge Thomas said:

My answer to you is I cannot sit here and decide that. I don't know.

On a question as to whether English-only policies might constitute discrimination, Judge Thomas said:

I don't know the answer to that.

On interpreting antidiscrimination statutes, Judge Thomas said:

Let me answer in this way, Senator, without being evasive. I know that there is pending legislation before this body in that area, and I don't think I should get involved in that debate.

On whether the Korean conflict was in fact a war, Judge Thomas said::

The short answer to that is, from my standpoint, I don't know.

On a recent dissent of Judge Marshall in which Judge Marshall said that:

Power, not reason, is the new currency of this Court's decisionmaking.

Judge Thomas said.

I would refrain from agreeing or disagreeing with that.

He certainly found a lot of ways to say `I do not know' or `I disagree' or `I cannot agree' or `I can't say whether I agree.'

The result of these and similar answers to a wide range of questions over 5 days of hearings is that I would like to refrain from agreeing or disagreeing to confirm Clarence Thomas to the Supreme Court, but I am not permitted to do that. I have to make a decision and to vote.

And Judge Thomas has not permitted me to judge his opinions, or what kind of Justice he will really be. I can only judge his performance before the Judiciary Committee and that which he has said previously.

I would like to quote the Chair, Senator Leahy, who I think stated well the dilemma that has been placed before us. Senator Leahy said:

As I said when the hearing began, no nominee should be asked to discuss cases pending before the Court. Neither should a nominee feel free to avoid questions about established constitutional doctrine on the ground that a case on that subject eventually will come before the Court. No one could compel Judge Thomas to answer questions. The decisions not to tell us how he thinks * * * was his and his alone. In choosing now to share his vision of the Constitution, Judge Thomas failed to provide what I need as a Senator for informed consent.

I concur with the Senator from Vermont.

I would turn also to a statement made by the distinguished Senator from Alabama, Judge Heflin, a conservative who voted for Chief Justice Rehnquist and Justices O'Connor, Scalia, Kenney, and Souter.

After listening to the testimony and trying in vain to obtain from Judge Thomas a further explanation of his positions, Judge Heflin said:

I came a way from the hearings with a feeling that no one knows what the real Clarence Thomas is like or what role he would play in the Supreme Court, if confirmed.

The Senate Judiciary Committee hearings have revealed to me many inconsistencies and contradictions between his previous speeches and published writings and the testimony he gave before the committee. * * * Our Nation deserves the best on the highest court in the land and an error in judgment could have long-lasting consequence to the American people. The doubts are many. The Court is too important. I must follow my conscience and the admonition: `When in doubt, don't.'

Mr. President, this body is in deep doubt concerning this nomination. I regret there will be a rush to confirm, but I regret even more that I do not have sufficient confidence in the kind of Justice that Judge Thomas would be. I regret that because I really came to this process wanting to vote for him, hoping I could vote for him, looking for a way to vote for him, and held in silence my comments until the end.

But I will vote against confirming him not on the basis of any of his past statements expressing hostility to reproductive rights or antidiscrimination statutes or minimum wage or congressional oversight. I will vote against him because his unwillingness to answer basic questions has fundamentally stymied the ability of the U.S. Senate to properly give advice and consent.

After they learned more and after Thomas referred to this legitimate examination as a lynching, Kerry really took issue with what he had said. It is very interesting to hear prosecutor Kerry's opinion of Anita Hill's charges. I am pleasantly surprised at how blunt his opinion was on this.

Mr. KERRY. Mr. President, I am interested to hear my colleagues talk about the state of the evidence and the doubt. The fact is, in this case, the sum total of all the evidence on behalf of Judge Thomas is his denial, and witnesses who are friends who have offered a stubborn denial that there friend and their candidate for the Supreme Court could have done what he was accused of. But none of their statements, and none of what they saw and reported, directly contradicted the four witnesses, four credible witnesses who, under oath, testified as to what they remember Anita Hill telling them

The one exception we have to the hearsay rule in cases of sexual transgression is called a fresh complaint, and a fresh complaint was made, Mr. President, I can remember trying rape cases in which people were sent to jail on the basis of the testimony of a victim and corroborating witnesses. People go to jail all across America on testimony such as was presented before the Judiciary Committee.

It may well be that some people cannot draw or do not want to draw a conclusion from it, but you cannot dismiss the weight of Anita Hill's testimony. You cannot dismiss the credibility of her motive or her actions. She did not seek out the FBI. She sought to keep this confidential. She has taken a lie detector test, which is a tool we use in law enforcement all the time. Each and every one of her witnesses came before the Judiciary Committee with independent memory, independent corroboration of the sexual harassment she recounts.

One cannot ignore the reality of how people behave in the case of sexual harassment. Indeed, I believe Anita Hill succumbed to ambition, and there is part of this story that is untold but that does not contradict her claim of what happened.

In the end, Mr. President, we are not called upon here to make a courtroom judgment about whether or not someone should go to jail. That is precisely the point. The standard for the Supreme Court is not whether the nominee can avoid going to jail or be found not guilty of a felony. It is whether the nominee meets the high standards demanded for the Supreme Court of the United States.

I previously have spoken in this Chamber about whether the nominee meets the highest standards. I said I did not believe so. But in the course of this weekend, I believe Judge Thomas confirmed that.

I believe that the judge's insertion of racism into these proceedings was a tragic and dangerous act. I believe his use of the word `lynching' was inflammatory, unscrupulous, and intemperate. The judge himself asked for a delay in the Senate vote so that the charges against him could be considered and the air cleared. Must we ask if that was a false request? A charge of sexual harassment by a black woman against a black man is not a lynching.

Judge Thomas knew that the chairman of the committee and the committee itself received harsh criticism for trying to keep the charge confidential as Professor Hill had insisted. Judge Thomas' efforts to have it both ways, and the callous expediency of his charge, will be felt for a long time to come. Such judgment does not belong on the Supreme Court.