Biden’s love of Senate tradition faces high-stakes judiciary test
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.
A COVETED SEAT
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.”
THE TRUE ‘BIDEN TEST’
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.
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.
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.