Is That Legal?

... I mean, it was a big deal. It was a big deal, at least in our area of the Delaware Valley, if Princeton, Penn, the schools around there had this kind -- because the big thing was going on at Brown at the time as well. And by the way, for the record, I know you know when you stated in your application that you are a member -- you said in '85, I am a member -- they had restored ROTC. ROTC was back on the campus. But again, this is just by way of why some of us are puzzled. Because if I was aware of it, and I didn't even like Princeton... I mean, I really didn't like Princeton. I was an Irish Catholic kid who thought it had not changed like you concluded it had. I admit, one of my real dilemmas is I have two kids who went to Ivy League schools. I'm not sure my Grandfather Finnegan will ever forgive me for allowing that to happen. But all kidding aside, I wasn't a big Princeton fan. And so maybe that is why I focused on it and no one else did. But I remember it at the time. The other thing is, Judge, the other thing you should be aware of -- and do not take this personally, what's going on here -- every nominee that comes before us is viewed by all the senators -- left, right, center, Democrat, Republican -- at least on two levels, at least in my experience here.

BIDEN: The first one is individual qualifications and what their constitutional methodology, their views are, their philosophy. But the other is -- and it always occurs -- whose spot they're taking and what impact that would have on the court. Everybody wrote with Roberts after the fact that a lot of people voted for Roberts that were doubtful. I was doubtful, I voted no. But he was replacing Rehnquist. So Roberts for Rehnquist, you know, what's the worst that can happen, quote/unquote, or the best that can happen?

(LAUGHTER)

No, I'm not being facetious. What's the best or worst? If you're conservative, the best that can happen is he's as good as Rehnquist. From the standpoint of a -- someone who's a liberal, the worst that can happen, he's as good as Rehnquist. So, I mean -- but you're replacing -- I mean, we can't lose this and so people understand this. You are replacing someone who has been the fulcrum on an otherwise evenly divided court. And a woman who's -- most scholars who write about her, and in a retrospective about her, say this is a woman who viewed things from -- the phrase you've used -- a real-world perspective. This was a former legislator, this was a former practitioner, this was someone who came to the bench and applied -- to her critics, she applied too much common sense. Critics would say that she was too sensitive to the impact on individuals, you know, that -- what would happen to an individual. So her focus on the impact on individuals was sometimes criticized and praised.

BIDEN: It's just important you understand, at least for my questioning, that this goes beyond you. It goes to whether or not your taking her seat will alter the constitutional framework of this country by shifting the balance 5-4, 4-5, one way or another. And that's the context in which, at least, I want to ask you my questions after trying to get some clarification, or getting some clarification from you on concern Princeton. Because, again, a lot of this just is puzzling; not not able to be answered, just puzzling. Judge, you and I both know -- and clearly one of the hallmarks, at least in my view, of Justice O'Connor's position was, she fully understood the real world of discrimination. I mean, she felt it. Graduated number two in her class from Stanford, couldn't get a job, was offered a job by law firms -- granted, she was older than you are, but couldn't get a job because she was a woman; they'd offer her a job as a secretary. And so she understood what I think everybody here from both ends of the spectrum understand: that discrimination has become very sophisticated. It's become very, very sophisticated, very much more subtle than it was when I got here 34 years ago or 50 years ago. And employees don't say any more, you know, We don't like blacks in this company, or, We don't want women here.

BIDEN: They say things like, Well, they wouldn't fit in, or, You know, they tend to be too emotional or a little high-strung. I mean, there's all different ways in which now it's become so much more subtle. And that's why we all, Democrat and Republican, wrote Title VII. We wrote these laws to try to get at what we observed in the real world. What we observed in the real world is it's real subtle. And yet it's harder to make a case of discrimination even though there's no doubt that it still exists. And so I'd like to talk to you about a couple of anti- discrimination cases. One is the Bray case. In that case, a black woman said she was denied a promotion for a job that she was clearly qualified for. There was no doubt she was qualified. And she said, I was denied that job because I'm a black woman. And it was, as I said, indisputable she was qualified. It was indisputable that the corporation failed to follow their usual internal hiring procedures. And the corporation gave conflicting explanations as to why they reached the decision to hire another woman who they asserted was more qualified than Ms. Bray. Now the district court judge said, you know, Ms. Bray hadn't even made a prima facie case here, or she made -- but she hadn't made a sufficient showing to get to a jury; I'm finding for the corporation here. And Ms. Bray's attorney appealed and it went up to the 3rd Circuit. And you and your colleagues disagreed. Two of your colleagues said, you know, Ms. Bray should have a jury trial here. And you said No, I don't think she should, and you set out a standard, as best I can understand it. I want to talk to you about it. And your colleagues said that if they applied your standard in Title VII cases, discrimination cases, that it would effectively -- their words -- eviscerate Title VII because, they went on to say, it ignores the realities of racial animus.

BIDEN: They went on to say that racial animus runs so deep in some people that they're incapable of acknowledging that a black woman is qualified for a job. But, Judge, you dismissed that assertion. You said that the conflicting statements that the employer made were just loose language, and you expressed your concern about allowing disgruntled employees to impose cost of a trial on employers. And so your colleagues thought you set the bar, I think it's fair to say, pretty high in order to make the case that it should go to a jury. Can you tell me what the difference is between a business judgment as to who's most qualified -- you said, This comes down to subjective business judgment -- and discrimination? You said, Subjective business judgment should prevail unless the qualifications of the candidate are extremely disproportionate. What's the difference between that in today's world and discrimination? I know you want to eliminate discrimination. Explain to me how that test is distinguishable from just plain old discrimination.