Bi­den’s love of Se­nate tra­di­tion faces high-stakes ju­di­ciary test

The Charlotte Observer (Sunday) - - Insight - BY MATT FLEGENHEIM­ER, ALEXAN­DER BURNS AND KATIE GLUECK New York Times

Joe Bi­den was try­ing to demon­strate the last­ing power of the fed­eral ju­di­ciary. So he did the math.

Ad­dress­ing a Michi­gan law school au­di­ence in April 1991, then-Sen. Bi­den said that if trends in life ex­pectancy held, a jus­tice freshly con­firmed around that time would “be mak­ing land­mark de­ci­sions in the year 2020.”

“I’ll be dead and gone, in all prob­a­bil­ity,” Bi­den told the crowd.

He was half-right. Nearly three decades later, the man whom the Se­nate con­firmed that year, Jus­tice Clarence Thomas, is still ren­der­ing de­ci­sions – the el­dest ju­rist, if Pres­i­dent Don­ald Trump has his way, of a soon-to-be 6-3 con­ser­va­tive ma­jor­ity.

But Bi­den is in­deed alive, left to con­sider what the court’s emerg­ing tilt would mean for the Demo­cratic agenda if he wins the White House – and for his own at­tach­ment to the Capi­tol’s by­gone har­mony and mores.

Af­ter a half-cen­tury in pub­lic life, with a lead role in sev­eral in­deli­ble con­fir­ma­tion dra­mas through the years, Bi­den could, if elected, be sad­dled with a Supreme Court primed to coun­ter­act his pol­icy aims on health care, abor­tion and other defin­ing is­sues.

Many Democrats now be­lieve that adding seats to the court is the ur­gent rem­edy, an ex­traor­di­nary step that has not been se­ri­ously con­tem­plated since the ad­min­is­tra­tion of Franklin D. Roo­sevelt. They ar­gue that the court’s le­git­i­macy has al­ready eroded amid the Repub­li­can con­fir­ma­tion ma­neu­vers of the past four years.

Yet for Bi­den, a proud man of the Se­nate, such an ef­fort would amount to the sort of norm-raz­ing ex­er­cise that might strike him as an es­ca­la­tion too many.

“My in­cli­na­tion is to think that he would just see that as mak­ing it more po­lit­i­cal in­stead of mak­ing it less po­lit­i­cal,” said Cyn­thia Ho­gan, a for­mer Ju­di­ciary Com­mit­tee aide who helped lead Bi­den’s search for a 2020 run­ning mate. “I think he wants to re­store the court to its ear­lier place of re­spect.”

In the im­me­di­ate term, the court has un­avoid­ably moved to the cen­ter of the cam­paign, with Trump’s op­por­tu­nity to re­place Jus­tice Ruth Bader Gins­burg, the stal­wart lib­eral who died Sept. 18.

If the ju­di­ciary is a sub­ject with which Bi­den is in­ti­mately fa­mil­iar – per­haps more so than any modern nom­i­nee – it is also one that he has largely avoided in the pres­i­den­tial race, pre­fer­ring to fo­cus on the calami­tous fed­eral re­sponse to the coro­n­avirus pan­demic and the per­pet­ual volatil­ity of Trump’s rule.

The broader irony is not lost on Bi­den’s al­lies: He is, at present, ef­fec­tively pow­er­less to stop the ide­o­log­i­cal drift of a court wrenched to the right by a pres­i­dent who ran casi­nos when Bi­den ran the Se­nate Ju­di­ciary Com­mit­tee.

And even if Bi­den is elected, his in­sti­tu­tion­al­ist bear­ing might pre­clude his sup­port for a pos­si­ble work­around.

In­ter­views with more than a dozen for­mer col­leagues, aides and other con­tem­po­raries from his ear­lier court clashes present Bi­den as a con­flicted com­bat­ant in the ju­di­cial trenches, ne­go­ti­at­ing the con­stant tug be­tween prece­dent and prag­ma­tism, con­ven­tion and con­vic­tion.

Dur­ing the Demo­cratic pri­maries last year, as ac­tivists pressed him to em­brace the court ex­pan­sion pro­pos­als, Bi­den dis­missed the idea out of hand, pre­dict­ing that “we’ll live to rue that day.” But he has re­cently taken a more am­biva­lent stance.

“It’s a le­git­i­mate ques­tion,” Bi­den said in a tele­vi­sion in­ter­view this past week.

He also de­clined to an­swer it.


Even be­fore he got to Washington as a 30-yearold sen­a­tor, Bi­den had his eye on the Ju­di­ciary Com­mit­tee.

And the road there ran through Sen. James East­land, a seg­re­ga­tion­ist from Mis­sis­sippi.

East­land “was prob­a­bly as far apart from me on civil rights as any man in the Se­nate,” Bi­den wrote in his 2007 mem­oir, “but he was also the chair­man of the Ju­di­ciary Com­mit­tee, a com­mit­tee that han­dled all crime leg­is­la­tion, a com­mit­tee on which I badly wanted to serve.”

They built a re­la­tion­ship, Bi­den said, and East­land awarded him a spot at the end of his first term.

In the decades that fol­lowed, Bi­den’s time on the com­mit­tee dou­bled as a kind of work­ing his­tory of the Supreme Court con­fir­ma­tion process’s lurch from col­lab­o­ra­tive to can­tan­ker­ous – a tra­jec­tory that Bi­den helped chart, some­times as­sertively and some­times re­luc­tantly, and some­times more by ac­ci­dent and er­ror than con­sid­ered strat­egy.

He was there in 1986 for the 98-0 con­fir­ma­tion of Jus­tice An­tonin Scalia, fall­ing in line de­spite the nom­i­nee’s sharp con­ser­va­tive views, and for the non­con­fir­ma­tion of Judge Mer­rick Gar­land three decades later, as the vice pres­i­dent in an ad­min­is­tra­tion blocked from fill­ing the va­cancy left by Scalia’s death.

Bi­den was there, as chair by 1987, to thwart the nom­i­na­tion of fire­brand con­ser­va­tive Robert Bork, the first modern re­jec­tion of a nom­i­nee for prin­ci­pally ide­o­log­i­cal rea­sons.

And he was there to pre­side over the Thomas hear­ings, dur­ing which the com­mit­tee’s treat­ment of Anita Hill, who ac­cused the judge of sex­ual ha­rass­ment, be­came an en­dur­ing mark on Bi­den’s Se­nate legacy.

For­mer aides and col­leagues on the com­mit­tee de­scribe Bi­den as keenly at­tuned to Se­nate cus­tom and de­ter­mined to up­hold a cul­ture of col­le­gial­ity – one that en­cour­aged warm re­la­tions be­tween Democrats like him and rightwing fig­ures like Strom Thur­mond of South Carolina, who led the panel for much of the 1980s.

Bi­den, the top Demo­crat on the com­mit­tee at the time, par­tic­i­pated in a few pre­lim­i­nary skir­mishes in that pe­riod, in­clud­ing one that ended in the de­feat of an Alabama district court nom­i­nee named Jeff Ses­sions. And Scalia’s land­slide con­fir­ma­tion is best viewed in the con­text of a si­mul­ta­ne­ous fight that Democrats picked with an­other judge, Wil­liam Rehn­quist, whom Pres­i­dent Ron­ald Rea­gan hoped to el­e­vate to chief jus­tice. Bi­den joined 32 sen­a­tors in fu­tile op­po­si­tion.

But any tus­sle then seemed to reg­is­ter as a one-off, rarely teth­ered to any broader in­ter­party an­tag­o­nism.

“The con­fir­ma­tion bat­tles of the time were nom­i­nee-spe­cific,” said Neal Manne, who served in the 1980s as chief coun­sel to the Ju­di­ciary Com­mit­tee when it was con­trolled by Repub­li­cans. “They weren’t re­ally viewed as some sort of skir­mish in a larger war for the po­lit­i­cal soul of the ju­di­ciary.”

They also were not nec­es­sar­ily re­quired view­ing.

For most of the decade, Manne said, “no­body came to the hear­ings; ev­ery­body got con­firmed.”


Lau­rence Tribe, the Har­vard Law School pro­fes­sor who helped pre­pare Bi­den for the Bork hear­ings, said that Bi­den had tended to re­sist pres­sure to sub­ject nom­i­nees to ex­plicit par­ti­san screen­ing, even af­ter the process had grown more openly ide­o­log­i­cal.

“I don’t think he ever came close to ar­tic­u­lat­ing a ‘Bi­den test’ for what’s ac­cept­able,” Tribe said. But, he added, Bi­den was con­cerned about nom­i­nees who would lead to the court’s “be­ing way out of kil­ter and out of sync with the coun­try as a whole.”

Bork was one such nom­i­nee. Shortly be­fore his nom­i­na­tion, Bi­den had sug­gested in a news­pa­per in­ter­view that he would most likely sup­port such a choice be­cause of Bork’s for­mi­da­ble le­gal cre­den­tials.

“I’m not Teddy Kennedy,” he told The Philadel­phia Inquirer, sug­gest­ing that he was no fiery pro­gres­sive.

Bi­den quickly shed that stance, ar­gu­ing in­stead that the judge’s po­si­tions on civil rights, con­tra­cep­tion and the right to pri­vacy placed him far out­side the main­stream.

In a speech on the Se­nate floor in July 1987, Bi­den in­sisted that ide­ol­ogy was fair game when the over­all bal­ance of the court was at stake. Part of the Se­nate’s role, he ar­gued, was not merely re­view­ing a nom­i­nee’s back­ground but also “pre­vent­ing the pres­i­dent from un­der­min­ing ju­di­cial in­de­pen­dence and re­mak­ing the court in his own image.”

Aides and peers, in­clud­ing some of the six Repub­li­cans who joined him in op­pos­ing Bork, cred­ited Bi­den with syn­the­siz­ing byzan­tine le­gal con­cepts into di­gestible ar­gu­ments against the nom­i­nee in pub­lic hear­ings. Bork’s de­feat was also some­thing of a per­sonal re­demp­tion arc for Bi­den, whose first pres­i­den­tial run had col­lapsed weeks ear­lier amid al­le­ga­tions of pla­gia­rism.

While some Repub­li­cans have not for­given Bi­den, en­shrin­ing “Bork” as a verb for the un­duly rail­roaded, any ac­ri­mony within the Se­nate it­self was short-lived dur­ing his chair­man­ship.

The 2020 Demo­cratic nom­i­nee who still of­ten in­ter­rupts him­self to raise a “point of per­sonal priv­i­lege” was known es­pe­cially for his at­ten­tion to de­tail.

Thomas Rath, the for­mer at­tor­ney gen­eral of New Hamp­shire who as­sisted in the con­fir­ma­tion process of Jus­tice David Souter, re­called Bi­den’s go­ing “out of his way to be gen­tle­manly” to the Souter team.

“He pro­vided a staff room we could be in dur­ing breaks, made sure of things like the judge had wa­ter, all the nice lit­tle things you do,” Rath said. “He re­ally had a very proper tone to it.”

Bi­den al­lies have sug­gested that his low­est mo­ment on the com­mit­tee – over­see­ing the Thomas hear­ings, in which Hill was sub­jected to in­va­sive and de­mean­ing ques­tions from Repub­li­cans – owed largely to the same im­pulse: priz­ing Se­nate deco­rum in a mo­ment when reg­u­lar or­der seemed to have lit­tle mean­ing.

If Bi­den hoped to earn a mea­sure of ap­pre­ci­a­tion from Repub­li­cans, he ap­peared to suc­ceed.

“He just had a very, very dif­fi­cult sit­u­a­tion,” said for­mer Sen. John Dan­forth, R-Mo., who cham­pi­oned Thomas’ nom­i­na­tion. “And he was try­ing to man­age it to the best of his abil­ity.”

De­spite any lin­ger­ing pas­sions from the Bork and Thomas hear­ings, Bi­den’s time as chair more of­ten fea­tured largely in­ci­dent-free con­fir­ma­tions, un­der Repub­li­can and Demo­cratic ad­min­is­tra­tions.



in 1991, Jus­tice Clarence Thomas meets with then Sen. Joe Bi­den, D-Del. Bi­den reveres Se­nate cus­tom and rec­og­nizes the courts’ es­sen­tial role in shap­ing a pol­icy agenda but those dual in­stincts have per­haps never been in greater con­flict.

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