The Joe Show


SENATOR JOE BIDEN: Thank you very much. Hey, Judge, how are you?

JUDGE JOHN ROBERTS: Fine, thank you.

BIDEN: You know, to continue your baseball analogy, I'd much rather be pitching to Arthur Branch, sitting behind you there, on Law and Order, than you. For everyone listening to these hearings at home, I just want to say that's a little joke, heh, heh... it's not nearly as incomprehensible as I make it sound. It's like pitching to Ken Griffey. I mean, you know, I'm a little concerned here that -- I'd like you to switch places with Thompson. I know that I know as much as he does. I don't know about you.

Stop laughing. That wasn't a joke. Geez Louise. Judge, look, I want to try to cut through some stuff here, if I can. I said yesterday this shouldn't be a game of Gotcha, you know. We shouldn't be playing a game, although really, just like baseball, that's a heckuva game, don't you think? Wait, don't answer that. That doesn't count as one of my question, does it?


BIDEN: Good. That's good. Judge, the folks have a right to know what you think. You're there for life, just like that guy Frankie on CSI, the one who tortured the priest. They don't get a chance to say, You know, I wish I'd known that about that guy. Why didn't I know about that guy. If good old Joe Biden had asked him the tough questions, I would have picked up the phone and called my senator and said, 'Vote no,' or, 'vote yes.' Whatever.

And so what I'd like to do is stick with your analogy a little bit, because everybody's used it: baseball. The great American pass time. Wouldn't you agree? Oops, no answering, not a real question.

 By the way, to continue that metaphor, or analogy, you hit a home run yesterday. BAP! Out of the ball park! It reminded me of the great Harmon Killebrew. I mean, everybody -- I got home and I got on the train and people were saying, 'Oh, he likes baseball, huh? Give that sucker a thumbs up.' Seriously. The conductors, people on the train. Amtrack train - I like to ride amongst the people. How about you, Arlen?

SPECTER: No I don't. And please keep your questioning addressed to Judge Roberts.

BIDEN: No problem. About that metaphor - it's an apt metaphor, because you just call balls and strikes, call them as you see them, straight up. I'd like to explore that philosophy a little bit, because you got asked that question by Senator Hatch - old Orin, geez that's a funny name - about what is your philosophy, and the baseball metaphor is used again. Arlen, how much time do I have left.

SPECTER: Just move ahead. Proceed.

BIDEN: Good, good, good, I'm just getting warmed up. As you know, in major league baseball, they have a rule. Lots of rules, really, but I just want to focus in on rule number two, the king of rules. Rule two defines the strike zone. It basically says from the shoulders to the knees. And the only question about judges is, and I'm speaking metaphorically here: Do they have good eyesight or not? They don't get to change the strike zone. They don't get to say, That was down around the ankles and I think it was a strike. They don't get to do that. Do you think that, is it your opinion that they should be able to call a strike when they've just beaned you with a fast ball?


BIDEN: That's okay, don't answer, I'm just stoking my metaphor. You had a metaphor yesterday, and today I'm playing with your metaphor. Having a grand time with it. But you are in a very different position as a Supreme Court justice. As you pointed out, some places of the Constitution define the strike zone. Now granted, you didn't use those exact words, but metaphorically, that's what you said. Two-thirds of the senators must vote. You must be an American citizen, to the chagrin of Arnold Schwarzenegger, to be president of the United States. Not going to happen Arnie, get over it. Me, I was born in this great land, a country where the strike zone is set out. But as you pointed out in the question to Senator Hatch, I think, you said unreasonable search and seizure. What constitutes unreasonable? Don't answer. Don't answer. Hypothetical question.

SPECTER: Senator Biden, will you get on with it?

BIDEN: Shakin' it here, boss, shakin' it. So, as much as I respect your metaphor, it's not very apt, because you get to determine the strike zone. What's unreasonable? Don't answer. Your strike zone on reasonable/unreasonable may be very different than another judge's view of what is reasonable or unreasonable search and seizure. Or it may be the same, which in Supreme Court parlance, would result in what we call 'a majority decision'.

And the same thing prevails for a lot of other parts of the Constitution. The one that we're all talking about is concerned with  the liberty clause of the Fourteenth Amendment. Are you familiar with that, judge? The fourteenth amendment?


BIDEN: Good answer, judge, good answer. It's a heckuva amendment.. All of the things that we debate about here and the court debates that deserve 5-4 decisions, they're almost all on issues that are ennobling phrases in the Constitution, that the founders never set a strike zone for. We're back to our metaphor, try to keep up with me. You get to go back and decide.  Do you look at a narrow or a broad right that has been respected? That's a strike zone.

So, as Chris Matthews said, Let's play baseball here. You know Chris Matthews? Shortstop for the Cardinals? 1973 to 1982? Heckuva ball player. So let's play ball. But it's a little dangerous to play baseball with you, like I said. But really and truly, it seems to me maybe we can get at this a different way. Hey Arlen, do I still have time for a question?

SPECTOR: Yes. Hurry up and get to the point..

BIDEN: Hurryin' boss. The explicit references in the Constitution are -- you know, there's nothing anyone would expect you or any other judge would do anything about. What am I talking about? Don't answer, that question's for me. You wouldn't say, You know, that's a really bad treaty they're voting on, so we've got to make it require 75 votes in the Senate. You can't do that. This is a theoretical treaty of which I speak, a really bad one. Like say we decided to give Syria all the nukes they wanted in exchange for their cotton. That would be a bad treaty, but nevertheless, you would not be able to just up and change the strike zone on us. I trust you can see my point.

So many of the Constitution's most important provisions aren't the precise rules that I've referenced earlier. Remember, I was talking about the fourteenth amendment a little while ago, and you were forced to admit what a fine amendment it was. Sometimes the principles everyone agrees are part of the Constitution or as the late chief justice -- your mentor -- said, quote, tacit postulates, unquote. Yes, tacit postulates. Sound like some sort of venereal disease, doesn't it? Don't answer that - it was a joke.

He used the phrase tacit postulates. These are like tiny cleansing bubbles that you see in toilet bowl cleanser commercials, except instead of searching out grime, they search out truth. He said that these tacit postulates are as much ingrained in the fabric of the document as it's express provisions. See, I know my stuff. Tacit postulates. I'll bet my bottom dollar that George Bush doesn't know what a tacit postulate is. How am I doing on time, Arlen?


BIDEN: Good enough. So anyway, Chief Justice Rehnquist made this very vital point and it was about state's right and language that didn't speak directly to them in the Constitution. This is good stuff. He concluded that the answer was a rule he was able to infer from the overall constitutional plan. And now let me come to my point.

Judge, you're going to be an inferrer, not an umpire. Umpires don't infer. They don't get to infer. Every justice has to infer. I guess the bottom line is that your metaphor wasn't so clever after all. Some of my colleagues may have fallen for it, but not Joe Biden.

So I want to try to figure out how you infer. I want to figure out how you go about this. And so let me get right to it. Let's play baseball. Here comes my first question, right over home plate.

Now, you have already said to the chairman that you agree that there's a right to privacy. Like when I go to the bathroom, I don't want the federal government to follow me in. And you said the Supreme Court found such a right in part in the Fourteenth amendment. My question is: Do you agree that -- not what said law is -- what do you think?


BIDEN: Oh man...


2005, Mark Hoback