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RUSH: Another audio sound bite from the hearings. This was this afternoon. The Alito confirmation, Senator Joe Biden. Biden says, “Sheer personal antipathy is okay even when the employer’s reason for not hiring the person toward whom they showed sheer personal antipathy weren’t true. How do you distinguish that from discrimination, subtle discrimination, sheer antipathy, subtle discrimination, that’s a tough one for me, judge. How do you draw a difference?”
ALITO: It gets into a fairly technical question involving a Supreme Court case called the McDonnell Douglas case. But to put it in simple terms, courts of appeals have divided into three camps on this. There was the pretext-plus camp, which was the one that was the least hospitable to claims by employees. There was the pretext-only camp, which was the camp that was most favorable to employees, and there was the middle camp. And my position was in the middle camp, and when the issue went to the Supreme Court, and it did, a couple of years later, in Reeves vs. Sanderson Plumbing, Justice O’Connor wrote the opinion for the Supreme Court, and she agreed with my analysis of this legal issue, that in most instances, pretext is sufficient.
RUSH: Bzzzz. Your time is up, Senator Biden. Because of course, it’s a shame we had to lose Justice O’Connor. They asked her to hold on, they asked her not to retire, even Senator Specter. So here’s Biden who thinks he’s the smartest guy in the Senate, he thinks he’s got Alito trapped. He’s got a question on discrimination. He wants to prove this guy discriminated, because he’s a conservative. He’s a Republican, of course he discriminates, that’s how they live. So he’s got this little case that he thinks he’s going to trip this guy up on because he’s smarter than Alito, he’s smarter than everybody. So he gets through this question, he says, “I don’t understand, sheer personal antipathy is okay, but how do you distinguish that from discrimination, subtle discrimination? That’s a tough one for me.”
Alito says, “Well, let me simplify this for you. There were three camps. I was in the middle camp, when the case went to the Supreme Court Justice O’Connor agreed with me.” Not I agreed with her, Justice O’Connor agreed with me! Biden may as well have thrown up. He may as well have ducked under the desk and surrendered the rest of his time. But you know, going into this, his staff or himself, “We’re going to get this guy on this one. My other compatriots, they’re going to try to nail him on abortion, they’re going to try to nail him on — but I’m going to get him on the racist charge, he discriminates, he’s for big business.” Slam-dunk, no contest.

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