Biden Wants to Work With ‘the Other Side.’ This Supreme Court Battle Explains Why.

In the clash over Robert H. Bork’s nomination, Joe Biden’s moderate instincts defined a winning strategy.

Joseph R. Biden Jr. was on the brink of victory, but he was unsatisfied.

Mr. Biden, the 44-year-old chairman of the Senate Judiciary Committee, was poised to watch his colleagues reject President Ronald Reagan’s formidable nominee to the Supreme Court, Robert H. Bork. The vote was unlikely to be close. Yet Mr. Biden was hovering in the Senate chamber, plying Senator John W. Warner of Virginia, a Republican of modestly conservative politics and regal bearing, with arguments about Bork’s record.

Rejecting a Supreme Court nominee was an extraordinary act of defiance, and Mr. Biden did not want a narrow vote that could look like an act of raw partisan politics.

“We already had Bork beat,” said Mark Gitenstein, who was then chief counsel to Mr. Biden’s committee. “But Biden really wanted to get Warner because he had such stature.”

Mr. Biden’s entreaties prevailed: Mr. Warner became one of 58 senators to vote against Bork, and one of six Republicans.

The Senate’s resounding rejection of Judge Bork in the fall of 1987 was a turning point, the first time it spurned a nominee to the high court for primarily ideological reasons. The vote ensured that the court’s swing seat would not go to a man with a long history of criticizing rulings on the rights of African-Americans and women. It also enraged a generation of conservatives and transformed the judge’s name into an ominous verb: Fearful of getting “Borked,” no nominee would ever again speak so freely about his views as Bork did.

The Senate’s resounding rejection of Judge Robert H. Bork in the fall of 1987 was a turning point, the first time it spurned a nominee to the high court for primarily ideological reasons.

It was also a personal turning point for Mr. Biden. In the Bork debate, Mr. Biden’s political ethos found its most vivid and successful expression.

A review of Mr. Biden’s conduct in the debate — including interviews with 16 people directly involved in the nomination fight, and a review of the hearings and Mr. Biden’s speeches — yielded a portrait of Mr. Biden as an ambitious young senator determined to achieve a vital liberal goal by decidedly unradical means.

The strategy Chairman Biden deployed then is the same one he is now proposing to bring to the White House as President Biden.

In the 1980s, as today, he saw bipartisan compromise not as a version of surrender, but as a vital tool for achieving Democratic goals.

Then, as now, Mr. Biden saw the culture and traditions of the Senate not as crippling obstacles, but as instruments that could be bent to his advantage.

And in both defining moments — his leadership of the Bork hearings and his third presidential campaign — Mr. Biden made persuading moderates, rather than exciting liberals, his guiding objective.

Mr. Biden, whose campaign declined to make him available for an interview, has strained to defend this approach in the 2020 presidential primary, offering only a halting rationale for a political worldview that other Democrats see as out of date. His rivals have branded him as a timid and even reactionary figure — a creature of the Senate cloakroom who partnered with former segregationists to pass draconian anti-crime legislation and joined with the business lobby to tighten bankruptcy laws.

And Mr. Biden’s opponents point not to the Bork hearings but a different confirmation battle as proof that his instincts are flawed. Four years after Bork was defeated, Mr. Biden would again take an accommodating approach to his Republican colleagues during Justice Clarence Thomas’s confirmation hearings, allowing harsh and invasive questioning of Anita Hill, the law professor who accused the nominee of sexual harassment. Mr. Biden would later express “regret” for the treatment she endured.

But he has never regretted the conciliatory style that led him to triumph against Bork. In that process, every important decision Mr. Biden made was aimed at winning over conservative Democrats and moderate Republicans — men like Mr. Warner.

Now 92, Mr. Warner said in an interview that his memories of the Bork hearings had grown foggy over the years. But two impressions were indelible, he said. The first concerned Reagan’s nominee: “I never encountered a man with a shorter temper,” Mr. Warner said.

The second concerned the caliber of the Senate’s deliberations.

It was a real, solid, good debate, led by Biden,” Mr. Warner said. “He showed extraordinary leadership.”

The outcome was not foreordained, for either Bork or Mr. Biden. The debate unfolded at a moment of humiliation for Mr. Biden, whose first campaign for president unraveled as the Bork hearings approached their climax. And the judge was no timid adversary, as the journalist Ethan Bronner wrote in a book on the nomination.

Robert Bork,” Mr. Bronner wrote, “was a man of war.”

Mr. Biden was seated behind a desk in a spacious living room adjoining his study at his Wilmington, Del., home. A few aides sat or stood around the room, where pizza was in generous supply. Squared off against Mr. Biden was Robert H. Bork — or rather, a convincing simulacrum played by the constitutional scholar Laurence Tribe.

Mr. Tribe and Mr. Biden would spar for hours in a series of sessions that August, joined occasionally by other legal experts who would help Mr. Biden hone his queries on subjects from antitrust regulation to sexual privacy.

Biden’s questions were really smart, and they also needed some sharpening,” Mr. Tribe said in an interview, citing Mr. Biden’s tendency to “ask one thing and mean something slightly different.”

Mr. Biden came to those training sessions by a jagged path, shaped by pressure from progressive activists and the delicate politics of the Judiciary Committee. He was arming himself to oppose Bork, but not with the methods of the left.

On the day Bork was nominated, liberals viewed Mr. Biden with suspicion. Taking over one of the Senate’s great committees at a boyish — for the Senate — age of 44, Mr. Biden had already split with progressives on the issue of busing as a means of desegregating schools. Until Bork, the authors Michael Pertschuk and Wendy Schaetzel would write, Mr. Biden “had been reluctant to challenge Reagan’s transformation of the federal judiciary.”

The previous November, the soon-to-be chairman had given liberals new reason for concern, suggesting to The Philadelphia Inquirer that he might one day vote to put Bork on the Supreme Court, should he be Reagan’s next nominee.

“I’m not Teddy Kennedy,” he told the newspaper.

When Justice Lewis F. Powell Jr., a flexible conservative, resigned from the court in late June, Mr. Biden found himself in the shadow of Kennedy, the party’s leading liberal, and laboring to reconcile his own moderate instincts with a mood of alarm on the left. When the White House announced Bork’s nomination on the first day of July, Kennedy delivered a thunderous warning from the Senate floor: In “Robert Bork’s America,” Kennedy said,

  • women would be forced into back-alley abortions,
  • blacks would sit at segregated lunch counters.”

The scathing address was a call to arms for the left, and it helped animate a coalition of progressives — led by feminists, civil rights activists and labor unions — that applied pressure to undecided senators throughout the summer.

His record was so extensive, and it touched almost every issue of importance to American life,” said Nan Aron, a leading anti-Bork activist. “It wasn’t simply a single issue that caused people to be alarmed.”

Another purpose of Kennedy’s speech, his allies have said, was to ensure Mr. Biden would not cave.

One of the reasons for ‘Robert Bork’s America’ was to freeze Biden,” Jeffrey Blattner, a Kennedy aide, would say decades later, in an oral history for the Edward M. Kennedy Institute for the United States Senate. “He’s running for president. We didn’t want to leave him any choice.”

Mr. Biden quickly aligned himself with Kennedy, and, at his liberal colleague’s urging, secured an agreement from Senator Strom Thurmond — the 84-year-old former segregationist who was the Judiciary Committee’s top Republican — to delay Bork’s hearings until September.

Biden was under a lot of pressure, particularly from the liberal senators,” said former Senator Dennis DeConcini of Arizona, a centrist Democrat who said he began the confirmation process favorably disposed toward Bork. “At first, I was leaning strongly to vote for him.”

Even as he pledged to oppose Bork, Mr. Biden made clear to progressive leaders in a private meeting that he saw his role as sharply distinct from theirs. He would play an inside game aimed at swaying Senate moderates, starting with the four undecided members of his committee:

  1. Mr. DeConcini and two other Democrats,
  2. Robert C. Byrd of West Virginia and
  3. Howell Heflin of Alabama, and a Republican,
  4. Arlen Specter of Pennsylvania.

Ralph Neas, a civil rights activist who joined the liberals’ initial meeting with Mr. Biden, said the chairman conveyed “that he would take the lead and we would try to put together a bipartisan coalition.”

Biden’s street cred with a lot of the centrists was quite high,” Mr. Neas said.

Mr. Biden was blunter with his aides: He would not adopt Kennedy’s rhetoric or make abortion his central cause. According to a book Mr. Gitenstein published in 1992 about the confirmation fight, Mr. Biden feared Bork would overturn Roe v. Wade but told aides he did not see the case as “great constitutional law.” More disturbing to him — and, he believed, more likely to sway undecided voters — was a Connecticut case on contraception that revealed Bork’s doubts about a broader right to privacy.

“It really concerns me more than abortion,” Mr. Biden is quoted as saying in the book.

In their sessions, Mr. Tribe said, the future vice president wrestled not just with Bork’s record but also with the idea of disqualifying nominees based on individual issues.

“I remember pushing back on Biden, saying, ‘If you think Roe v. Wade really ought to be the law of the land, shouldn’t that count?’” Mr. Tribe recalled. “He said, ‘Yes, it should count a lot, but I still don’t want to have a flat litmus test.’”

Mr. Tribe remembered thinking: “This guy’s a little bit more cautious than I am. But that’s fine, he’s playing a different role.”

Mr. Biden’s self-assigned role was readily apparent as the Bork hearings began in mid-September. Beaming down at the judge from a crowded dais, Mr. Biden praised him as man of towering achievement and “provocative” views. Flanked by Kennedy at one elbow and Thurmond at the other, Mr. Biden said the hearings should not be “clouded by strident rhetoric from the far left or the far right.”

Anytime you feel you want to expand on an answer, you are not bound by time,” Mr. Biden encouraged Bork, adding in a tone of levity, “Go ahead and bog us down.”

In the Bork hearings, every important decision Mr. Biden made was aimed at winning over conservative Democrats and moderate Republicans.
In the Bork hearings, every important decision Mr. Biden made was aimed at winning over conservative Democrats and moderate Republicans.CreditJose

The judge, bearded and broad shouldered, did not recognize the trap.

Few men could have been more prepared to face a constitutional interrogation. A former Yale Law School professor who served as the country’s solicitor general and, amid the maelstrom of Watergate, as acting attorney general, Bork brought to the hearings a reputation for quick eloquence and utter mastery of the law.

Mr. Biden had no such reputation, and the columnist George F. Will spoke for much of Washington when he predicted Bork would be “more than a match for Biden.”

The chairman gave his colleagues wide latitude to question Bork, whose testimony consumed five days. It culminated in an unusual Saturday hearing that was dominated by an hourslong debate between Bork and Specter, a former district attorney who frequently rode the Amtrak rails with Mr. Biden, about the meaning of constitutional intent. Mr. Biden had offered Specter half an hour for his questions; when Specter balked at the time limit, Mr. Biden relented and opened the way for a crucial exchange.

“His debate with my father on constitutional law did reveal him to be not sufficiently respectful of precedent, which pushed my father against him, and pushed other swing senators against him,” said Shanin Specter, the senator’s son and a Philadelphia lawyer. “It would not have happened if Biden, as chair, hadn’t permitted the hearings to go exactly as long as they needed to go.”

Mr. Biden sought, too, to quash attacks on Bork that he saw as risking political backlash. He shot down a plan to ambush Bork with a recording of a speech he gave in 1985, insisting on sharing it with the judge before airing it in the committee. And Mr. Biden and his aides refused a request from a number of prominent activists, including Ralph Nader, to testify in opposition to Bork. The left was applying powerful pressure from outside the Senate, but Mr. Biden preferred that its leaders stay there — on the outside.

Ms. Aron, who would later clash with Mr. Biden over the nomination of Justice Thomas in 1991, said the combination of popular pressure on the Senate and Mr. Biden’s high-minded hearings doomed the nominee.

What defeated Robert Bork was public pressure,” Ms. Aron said. “But what allowed the public to engage was a review of Bork’s record.”

And Bork did himself few favors: While he assured senators, in his rumbling voice, that he would not overturn rulings capriciously, he struggled to explain away past comments decrying “dozens” of shoddy Supreme Court decisions or deriding the Civil Rights Act of 1964, or ridiculing the concept of a constitutional right to privacy. He startled even some allies by describing as “troublesome” the reasoning behind a 1954 case desegregating public schools in the nation’s capital.

In his questions, Mr. Biden posed as a mere mortal grappling with the ideas of a giant.

“Clearly, I do not want to get into a debate with a professor,” Mr. Biden stressed, prodding Mr. Bork about the Griswold v. Connecticut case that ended a state prohibition on birth control: “As I hear you, you do not believe there is a general right of privacy that is in the Constitution.”

“Not one derived in that fashion,” Bork said of the popular decision. “There may be other arguments, and I do not want to pass upon those.”

Watching Bork’s testimony, his political backers knew he was losing. He was articulate, but he was also argumentative. His knowledge of the law was powerful, his political antennae were not.

“I can’t blame Biden,” reflected Tom Korologos, the Republican lobbyist tasked with ushering Bork onto the court. “I blame Bork and Specter, and the other senators, for going on and on.”

Every swing vote on Mr. Biden’s committee swung against Bork, sending him to the floor with a negative recommendation by a vote of 9 to 5. The White House offered Bork the chance to withdraw; he chose martyrdom instead.

His supporters gave him that much, accusing Bork’s opponents of bowing to activists like Mr. Neas and Ms. Aron. “The man’s been trashed in our house,” Senator John Danforth, Republican of Missouri, lamented on the Senate floor. “Some of us helped generate the trashing. Others of us yielded to it.”

Mr. Biden called Mr. Danforth’s complaint an insult to the Senate.

“I have a higher opinion of the ability of my colleagues to do what’s right than, apparently, the senator from Missouri does,” he said.

Mr. Biden’s approach to the Bork nomination was a legislative and political success, one he experienced as personal redemption after his presidential candidacy crumbled. It brought to maturity the strategic instincts that defined him in subsequent battles — including his contested stewardship of the Thomas hearings — and that shape his candidacy today.

The fate of Mr. Biden’s campaign, and perhaps a future presidency, may hinge on whether that version of leadership, defined by collegiality and adherence to procedure, can inspire Democrats and coax cooperation from Republicans. In the presidential race, there is no Ted Kennedy to sound a trumpet for the left while Mr. Biden plays a methodical inside game. And there are no Republicans to be found in the Senate like Specter, who eventually, at Mr. Biden’s urging, quit the G.O.P. to become a Democrat before his death in 2012.

Still, Mr. Gitenstein said he had encouraged the former vice president to draw public attention to his role in the 1987 court fight. The defeat of Robert Bork averted a solidly conservative majority, handing the court’s decisive seat to the more pliant Anthony M. Kennedy, who became a decisive figure in a generation’s worth of eclectic rulings on subjects from campaign finance and union rights to abortion and the legal definition of marriage.

“I don’t think he or anyone else makes enough of the fact that, but for Biden, Roe would be dead 30 years ago, and, but for Biden, we wouldn’t have the gay marriage decision,” Mr. Gitenstein said. “I’ve talked to him about it. He’s got so much on his platter.”

Mr. DeConcini, who at 82 is a supporter of Mr. Biden’s campaign, said he hoped a strategy of moderation could prevail again.

But he admitted to having doubts.

“I’d like to think so, I really would,” Mr. DeConcini said. “I’m just not sure.”

‘Dear Boss: I quit.’ What letters like Mattis’s can foretell.

No one saw the letter as anything but a stinging protest. “Old Marines never die, but they do resign after the President ignores their advice, betrays our allies, rewards our enemies, and puts the nation’s security at risk,” Rep. Adam B. Schiff (D-Calif.) wrote in a tweet, referencing Mattis’s storied career in the Marine Corps.

.. I’ve studied resignations for 28 years. I’ve written a book about them — the world viewed through the medium of the kiss-off, from classical times to the modern day. History is written as much in endings as beginnings. The pivotal changes can arrive not with “Eureka!” moments but with adamant refusals.

.. Yet the most effective leave-takings are composed over time and with military precision. These are made up of the words, distilled from private agonies, that we place on the public record. They must function as appeals to history — as, in a case like Mattis’s — or one good grenade.

.. The United States armed forces are home to a “go-down-fighting” resignation-letter subculture all its own. The military tradition of explosive, often cutting letters began in 1979 by Air Force Capt. Ron Keys, who served as a pilot in the Vietnam War. His resignation, tendered to Gen. Wilbur Creech, contained legendary and often-imitated lines: “The General looked us in the eye and said, in effect, ‘Gentlemen, either I’m very stupid or I’m lying to you’” and “All those Masters and professional military educators and not a leadership trait in sight!”
.. Keys later said he hadn’t intended to send the letter that began “Dear Boss, Well, I quit.” He’d written it out of frustration late one night and mailed it by accident. Nobody bought that, least of all Creech. But the general did invite Keys to a meeting to elaborate. Keys’s recommendations were heard, his resignation rescinded. By the time he retired in 2007, he was Gen. Ronald Keys, commander of Air Combat Command. But it was the frazzled, almost comedic howl of rage that was Keys’s resignation, rather than the officer’s career, that was most widely remembered. Passed around and published, it quickly formed the template for what became known as the “Dear Boss” letter — Air Force slang for the frustrated officer’s resignation as unrestrained truth attack.
.. Planned, polished and executed for maximum effect, Dear Boss letters are ambushes by nature. The most famous — before Mattis’s on Thursday — was that of the highly decorated Army Col. Millard A. Peck, who resigned in 1991 as head of the Pentagon intelligence unit assigned to search and account for missing-in-action servicemen in Vietnam. Over four pages of complaints that would doubtlessly ring bells with Mattis, Peck wrote of being “painfully aware … that I was not really in charge of my own office, but was merely a figurehead or whipping boy for a larger and totally Machiavellian group of characters.” His department, he said, was nothing but “a ‘toxic waste dump’ designed to bury the whole mess out of sight and mind in a facility with limited access to public scrutiny.”

In a country still ambivalent about remembering Vietnam and haunted by the possibility of prisoners of war as well as those missing in action, the effect was electric. Within weeks, the Senate Foreign Relations Committee opened a public hearing. Peck ended up overseeing administrative services for military ceremonies. He had taken the hit, but he’d got the result he wanted: a national public reckoning with the way the military looked after its own.

The Lesser Part of Valor

You wouldn’t say that Preston Brooks sucker-punched Charles Sumner in the Senate chamber in 1856—but only because he used a cane. Brooks, a South Carolina congressman, began bludgeoning Sumner, the anti-slavery Massachusetts senator, while Sumner wasn’t looking, and beat him unconscious as Sumner was still bent under his desk trying to stand up.

.. Brooks and his supporters in the South saw the incident as an act of great valor, as the historian Manisha Sinha writes. Brooks bragged that “for the first five or six licks he offered to make fight but I plied him so rapidly that he did not touch me. Towards the last he bellowed like a calf.” The pro-slavery Richmond Enquirer wrote that it considered the act “good in conception, better in execution, and best of all in consequence.” Other “southern defenders of Brooks,” Sinha writes, praised Brooks for his “manly spirit” and mocked Sumner for his “unmanly submission.” It would have been manlier for the unarmed Sumner not to have been ambushed.

 .. Sumner gave a speech accusing Butler of having chosen “the harlot, slavery,” as his “mistress.” Brooks’s defense of Southern honor was to ambush an unarmed man reaching under his desk. As Sinha writes, Brooks later said that attacking Sumner with a cane, rather than challenging him to a duel, was an attempt to humiliate Sumner for his abolitionism by treating him like a slave.
.. Northern papers rightly saw Brooks’s act of violence against Sumner as an attack on free speech
.. Despite Brooks’s public bravado, many of his contemporaries understood that what he had done was an act of cowardice.
.. Anson Burlingame, a representative from Massachusetts, denounced Brooks on the House floor.
.. The Times reported at the time that the proprietor of the shooting gallery “had witnessed, in his time, some accurate shooting, but nothing that equaled this.”
.. Brooks’s headstone would later say that heaven itself never opened its arms to a “manlier spirit.”
.. The antebellum South was a society built on the violent exploitation of defenseless people; it is in no sense strange or odd that slaveholders would see no incompatibility between their concept of freedom and valor, and ambushing and caning a man who said something that hurt their feelings.
.. Gianforte attacked a man professionally obligated not to fight back. He initially accused Jacobs of being the aggressor and justified the assault by describing him as a “liberal reporter.” He hid from reporters all through election day, and as Brian Beutler points out, apologized only after he had won the seat.
.. Physically attacking journalists for asking questions is cowardly. Every single person who defends it is engaging in an act of cowardice. The notion that Gianforte was merely channeling the rugged frontier culture of Western mountain men when he attacked someone who asked him a question is laughable and patronizing.
.. It is not 1856, but these are the politics of a false valor forged by fear. It is the undercurrent of a politics that defends grown men who stalk black teenagers in the night and then gun them down when they raise their hands in their own defense; it is the politics that rationalizes Ohio police shooting a 12-year-old boy with a toy gun without so much as a chance to surrender; it is the politics of mass deportation and Muslim bans and Blue Lives Matter bills. It is the political logic of frightened people who need to tell themselves they are brave. This is not valor; it is the celebration of violence against those who cannot respond in kind.
.. That logic is properly realized in the avatar of a president who mocks those who served and suffered while having avoided service himself; who brags about sexual assault behind closed doors and threatens to silence the women who say he assaulted them; who ridicules disabled people then denies doing so; who calls the press the “enemy of the people” when reporters write stories that upset him; who attacks religious fundamentalism from the safety of a podium in this country and then genuflects before its most powerful representatives abroad. Brooks is long dead, but the heirs to his peculiar notion of bravery govern America still.

The Bow-Tied Bard of Populism

Tucker Carlson’s latest reinvention is guided by a simple principle—a staunch aversion to whatever his right-minded neighbors believe.

“I’m so pathetically eager for people to love D.C.,” he admits. “It’s so sad. It’s like I work for the chamber of commerce or something.”

If this boosterism seems out of character for a primetime populist like Carlson, he doesn’t seem to mind the dissonance. He speaks glowingly of his Northwest Washington neighborhood, a tony enclave of liberal affluence where, he tells me, he is surrounded by diplomats, lawyers, world bankers, and well-paid media types. They are reliably “wonderful”; unfailingly “nice”; “some of my favorite people in the world.” If you’ve watched Carlson on TV lately, you know they are also wrong about virtually everything.

.. “Look, it’s really simple,” Carlson says. “The SAT 50 years ago pulled a lot of smart people out of every little town in America and funneled them into a small number of elite institutions, where they married each other, had kids, and moved to an even smaller number of elite neighborhoods. We created the most effective meritocracy ever.”

“But the problem with the meritocracy,” he continues, is that it “leeches all the empathy out of your society … The second you think that all your good fortune is a product of your virtue, you become highly judgmental, lacking empathy, totally without self-awareness, arrogant, stupid—I mean all the stuff that our ruling class is.”

.. Carlson’s true talent is not for political philosophizing, it’s for televised partisan combat. His go-to weapons—the smirky sarcasm, the barbed comebacks, the vicious politeness—seem uniquely designed to drive his sparring partners nuts, frequently making for terrific television. Indeed, if cable news is ultimately theater, Carlson’s nightly performance is at once provocative, maddening, cringe-inducing, and compulsively watchable. Already, in its few short months in primetime, Tucker Carlson Tonight has created more viral moments than it had any right to do.

.. Though he has earned a reputation among his media antagonists for being an ambush artist—luring guests onto his show under false pretenses and then humiliating them with “gotcha” questions—Carlson says he’s always upfront while booking interviewees, and strives to avoid mean-spiritedness.

.. When I ask him why he was so infuriated by Duca, he thinks about it for a moment.

Finally, he answers, “It was the unreasonableness … It’s this assumption—and it’s held by a lot of people I live around—that you’re on God’s side, everyone else is an infidel, and by calling them names you’re doing the Lord’s work. I just don’t think that’s admirable, and I’m not impressed by that.”

.. the essence of Carlson’s case against the educated elites and well-heeled technocrats that comprise America’s ruling class (not to mention his neighborhood). They are

  • too certain of their own righteousness,
  • too dismissive of dissenters,
  • too unwilling to entertain new ideas.

.. When Carlson first joined primetime last year, he assigned his show a mission statement: “The sworn enemy of lying, pomposity, smugness, and groupthink.”

.. united in their hatred of a common enemy, the smug elites who Carlson rails against every night. And while he may have spent his life happily living among them, he’s clearly demonstrated he has no qualms about taking them on.