Bench Memos

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Biden’s Questions


Biden’s “brief” prefatory remarks run for 12 minutes. At one point during this 12-minute overture, Alito, evidently under the mistaken impression that Biden might want to hear what he had to say, even interrupted Biden to make a quick point. Overall division of time I would estimate at Biden 24, Alito 6.

Biden states that Alito is a “man of integrity” and calls the attacks on his ethics “malarkey” (at least I think that was the word; it may have been something similar). Will other Dems face up to this reality?

Asks about Alito’s dissent in the Bray employment-discrimination case, which I address here. Alito says close case, acknowledges existence in real world of subtle discrimination, explains that evidence showed mere non-compliance by company with own internal rules.

Asks about the Sheridan employment-discrimination case, which I address here. Biden seems not to understand that Title VII prohibits employment actions only on particular grounds (such as race and sex). Alito points out that the Supreme Court, in an opinion by O’Connor (which was unanimous), embraced Alito’s position. Biden tries to spin the O’Connor opinion against Alito in the specific facts of Bray (which of course weren’t before O’Connor). But the passage he reads from O’Connor is exactly what Alito said.

Overall, Biden’s questioning was very respectful. Given that he is a sure vote against Alito, that’s a promising sign.


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