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.”

Clarence Thomas’s Astonishing Opinion on a Racist Mississippi Prosecutor

Mississippi prosecutor went on a racist crusade to have a black man executed. Clarence Thomas thinks that was just fine.

That’s the message of an astonishing decision handed down by the Supreme Court on Friday. The facts of the case, known as Flowers v. Mississippi, are straightforward. As Justice Brett Kavanaugh put it, in his admirably blunt opinion for the Court, “In 1996, Curtis Flowers allegedly murdered four people in Winona, Mississippi. Flowers is black. He has been tried six separate times before a jury for murder. The same lead prosecutor represented the State in all six trials.” Flowers was convicted in the first three trials, and sentenced to death. On each occasion, his conviction was overturned by the Mississippi Supreme Court, on the grounds of misconduct by the prosecutor, Doug Evans, mostly in the form of keeping African-Americans off the juries. Trials four and five ended in hung juries. In the sixth trial, the one that was before the Supreme Court, Flowers was convicted, but the Justices found that Evans had again discriminated against black people, and thus Flowers, in jury selection, and they overturned his conviction. (The breathtaking facts of the case and its accompanying legal saga are described at length on the American Public Media podcast “In the Dark.”)

As Kavanaugh recounted in his opinion, Evans’s actions were almost cartoonishly racist. To wit: in the six trials, the State employed its peremptory challenges (that is, challenges for which no reason need be given) to strike forty-one out of forty-two African-American prospective jurors. In the most recent trial, the State exercised peremptory strikes against five of six black prospective jurors. In addition, Evans questioned black prospective jurors a great deal more closely than he questioned whites. As Kavanaugh observed, with considerable understatement, “A court confronting that kind of pattern cannot ignore it.

But Thomas can, and he did. Indeed, he filed a dissenting opinion that was genuinely outraged—not by the prosecutor but by his fellow-Justices, who dared to grant relief to Flowers, who has spent more than two decades in solitary confinement at Mississippi’s notorious Parchman prison. Thomas said that the prosecutor’s behavior was blameless, and he practically sneered at his colleagues, asserting that the majority had decided the Flowers case to “boost its self-esteem.” Thomas also found a way to blame the news media for the result. “Perhaps the Court granted certiorari because the case has received a fair amount of media attention,” he wrote, adding that “the media often seeks to titillate rather than to educate and inform.”

The decision in Flowers was 7–2, with Neil Gorsuch joining Thomas’s dissent. The two have become jurisprudentially inseparable, with Gorsuch serving as a kind of deputy to Thomas, as Thomas once served to Antonin Scalia. But Thomas usually has a majority of colleagues on his side, in a way that often eluded Scalia. The Flowers case notwithstanding, Thomas now wins most of the time, typically with the assistance of Chief Justice John Roberts, Samuel Alito, and Kavanaugh.

Despite Thomas’s usual silence on the bench (he did ask a question during the Flowers argument), he is clearly feeling ideologically aggressive these days. In his Flowers dissent, Thomas all but called for the overturning of the Court’s landmark decision in Batson v. Kentucky, from 1986, which prohibits prosecutors from using their peremptory challenges in racially discriminatory ways. Earlier this year, he called for reconsideration of New York Times Co. v. Sullivan, from 1964, which established modern libel law, with its protections for journalistic expression. And in a decision earlier this month, Thomas made the case that the Court should be more willing to overturn its precedents. It’s customary for the Justices to at least pretend to defer to past decisions, but Thomas apparently no longer feels obligated even to gesture to the Court’s past. As he put it last fall, in a concurring opinion in Gamble v. United States, “We should not invoke stare decisis to uphold precedents that are demonstrably erroneous.” Erroneous, of course, in the judicial world view of Thomas. The Supreme Court’s war on its past has begun, and Clarence Thomas is leading the charge.

Liberals Who Cry Roe

A obscure case over state sovereignty triggers a Supreme Court exchange over precedent.

Progressives outside the Court correctly interpreted the subtext of the Breyer dissent. “Clarence Thomas Just Showed How Supreme Court Would Overturn Roe v. Wade,” declared one columnist. Liberals are skiing so fast down this slope they can’t stop to think.

Justice Thomas is the only Justice who has endorsed overturning Roe. Chief Justice John Roberts and Justice Brett Kavanaugh are wary enough of abortion politics that they declined to hear a case last year involving Medicaid provider contracts ostensibly because Planned Parenthood was a plaintiff. The High Court will eventually address abortion rights, but it is likely to do so incrementally unless it is forced to take on Casey and Roe directly by some state law. And even then we don’t know what the Justices would do.

Trump’s Appointment of the Acting Attorney General Is Unconstitutional

The president is evading the requirement to seek the Senate’s advice and consent for the nation’s chief law enforcement officer and the person who will oversee the Mueller investigation.

What now seems an eternity ago, the conservative law professor Steven Calabresi published an op-ed in The Wall Street Journal in May arguing that Robert Mueller’s appointment as special counsel was unconstitutional. His article got a lot of attention, and it wasn’t long before President Trump picked up the argument, tweeting that “the Appointment of the Special Counsel is totally UNCONSTITUTIONAL!”

Professor Calabresi’s article was based on the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its “Advice and Consent” powers.

.. He argued that Mr. Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional.

.. As one of us argued at the time, he was wrong. What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid.

But Professor Calabresi and Mr. Trump were right about the core principle. A principal officer must be confirmed by the Senate. And that has a very significant consequence today.

It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

.. the the flaw in the appointment of Mr. Whitaker, who was Mr. Sessions’s chief of staff at the Justice Department, runs much deeper. It defies one of the explicit checks and balances set out in the Constitution, a provision designed to protect us all against the centralization of government power.

.. If you don’t believe us, then take it from Supreme Court Justice Clarence Thomas, whom Mr. Trump once called his “favorite” sitting justice. Last year, the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board had been lawfully appointed to his job without Senate confirmation. The Supreme Court held the appointment invalid on a statutory ground.

.. Justice Thomas agreed with the judgment, but wrote separately to emphasize that even if the statute had allowed the appointment, the Constitution’s Appointments Clause would not have. The officer in question was a principal officer, he concluded. And the public interest protected by the Appointments Clause was a critical one: The Constitution’s drafters, Justice Thomas argued, “recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in the government.” Which is why, he pointed out, the framers provided for advice and consent of the Senate.

.. What goes for a mere lawyer at the N.L.R.B. goes in spades for the attorney general of the United States, the head of the Justice Department and one of the most important people in the federal government.

Mr. Whitaker has not been named to some junior post one or two levels below the Justice Department’s top job. He has now been vested with the law enforcement authority of the entireUnited States government, including the power to supervise Senate-confirmed officials like the deputy attorney general, the solicitor general and all United States attorneys.

.. We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but Mr. Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

.. Because Mr. Whitaker has not undergone the process of Senate confirmation, there has been no mechanism for scrutinizing whether he has the character and ability to evenhandedly enforce the law in a position of such grave responsibility. The public is entitled to that assurance, especially since Mr. Whitaker’s only supervisor is Mr. Trump himself, and the president is hopelessly compromised by the Mueller investigation.
.. As we wrote last week, the Constitution is a bipartisan document, written for the ages to guard against wrongdoing by officials of any party. Mr. Whitaker’s installation makes a mockery of our Constitution and our founders’ ideals. As Justice Thomas’s opinion in the N.L.R.B. case reminds us, the Constitution’s framers “had lived under a form of government that permitted arbitrary governmental acts to go unchecked.” He added “they knew that liberty could be preserved only by ensuring that the powers of government would never be consolidated in one body.”

We must heed those words today.