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:
- Mr. DeConcini and two other Democrats,
- Robert C. Byrd of West Virginia and
- Howell Heflin of Alabama, and a Republican,
- 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.”
Another way to distill the failure is to say that in the last decade or so the center-left attempted a series of policy compromises — Obamacare instead of single-payer, cap-and-trade instead of a Green New Deal, modest upper-bracket tax increases instead of big attempts to soak the rich — and then discovered that the Republican Party was either still too far away ideologically or too much of an internally divided mess to make a lasting deal on any issue. And meanwhile the compromises were often unpopular with swing voters — as Obamacare was at first, as cap-and-trade or a carbon tax probably would be (just ask Emmanuel Macron) — so there was no obvious political advantage to making them pre-emptively.
.. Both of these accounts fit DeLong’s narrative; both make a case for letting the further-left parts of the Democratic coalition try leadership instead, and seeking compromises between socialists and liberals rather than pining for moderate-Republican partners who don’t appear to be in evidence.
But then consider a third distillation, a third narrative, in which the center-left’s signal political failure was that it never really sought to preserve a cultural centrism, which meant over time that its party’s approach to social issues has been dictated more and more completely by the left. In this story the political success of Bill Clinton reflected not only his compromises with Republicans on taxes and spending, his tacit nods to Reaganomics, but also his ability to infuse a centrist liberalism with reassuring nods to various kinds of moderate cultural conservatism — the school uniform and v-chip business and the rhetoric of “safe, legal and rare” on abortion, the easy Baptist religiosity, the tacitly center-right positions on immigration and crime and same-sex marriage.
And in this part of the Democratic coalition’s story, the center-left’s role has been extraordinarily passive, essentially following the cultural left a tiny bit more slowly rather than trying to devise a more moderate approach. You can find hints of what such a moderate approach might look like in intellectual projects like Jonathan Haidt’s Heterodox Academy, or in the probing, evenhanded culture-war reportage of the magazine writer Jesse Singal (whom I hesitate to even praise because it will do him no favors on the internet). But that cultural moderation has no substantial political form, no important champions within the Democratic Party. It has Joe Manchin and Tulsi Gabbard, maybe, but they are eccentric figures; elsewhere among the Democrats there is little interest in considering all the different ways that cultural extremism costs them votes.
Which means that if the center-left abdicates, DeLong-style, on economic policy, the Democratic Party as a whole will have moved to the left on every front, writing off not only the possibility of compromising with Republican politicians (which, for now, might be understandable) but also the possibility of winning over voters who would almost certainly be Democrats if the party still occupied the cultural terrain that it held in 2000 or even as late as 2008.
Sadly the rest of the DeLong thread didn’t take up that possibility. It degenerated, instead, into a howl against Republican fascism and a post-Protestant sermon about how liberal America can build the true and only heaven, the real shining city on the hill.
Which suggests that to reckon with the possibility that making liberalism a pseudo-church might be a problem, not an aspiration, we need a very different center-left from the one surrendering today.
For some people, the warriors of the populist right must be replaced by warriors of the populist left. For these people, Trump has revealed an ugly authoritarian tendency in American society that has to be fought with relentless fervor and moral clarity.
For others, it’s Trump’s warrior mentality itself that must be replaced. Warriors on one side inevitably call forth warriors on the other, and that just means more culture war, more barbarism, more dishonesty and more dysfunction.
.. The truth is plural. There is no one and correct answer to the big political questions. Instead, politics is usually a tension between two or more views, each of which possesses a piece of the truth.
.. Leadership is about determining which viewpoint is more needed at that moment
.. Politics is a limited activity. Zealots look to the political realm for salvation and self-fulfillment. They turn politics into a secular religion and ultimately an apocalyptic war of religion because they try to impose one correct answer on all of life. Moderates believe that, at most, government can create a platform upon which the beautiful things in life can flourish. But it cannot itself provide those beautiful things.
.. Government can create economic and physical security and a just order, but meaning, joy and the good life flow from loving relationships, thick communities and wise friends. The moderate is prudent and temperate about political life because he is so passionate about emotional, spiritual and intellectual life.
.. Because they are syncretistic, they are careful to spend time in opposing camps, always opening lines of communication. The wise moderate can hold two or more opposing ideas together in her mind at the same time.
.. Beware the danger of a single identity. Before they brutalize politics, warriors brutalize themselves. Instead of living out several identities — Latina/lesbian/gun-owning/Christian — that pull in different directions, they turn themselves into monads. They prioritize one identity, one narrative and one comforting distortion.
.. Moderates are problematic members of their party. They tend to be hard on their peers and sympathetic to their foes.
Senator John McCain cast the deciding vote to jettison Republicans’ latest Obamacare reform effort, handing a victory to Lisa Murkowski of Alaska and Susan Collins of Maine, moderates whose opposition to any substantive health-care reform has become nearly intractable. But the legislation for which Republican leaders asked their conference to vote was so unpalatable, and the process so objectionable, that it is almost difficult to fault him. The Congressional Budget Office suggested that the “skinny” health legislation on which the Senate voted would raise premiums by as much as 20 percent. It assumed that since the legislation ended the fines for going without insurance, many healthy people would drop coverage, and premiums would have to pay for a sicker population. The estimate may be too high, since the CBO has repeatedly overestimated the impact of the fines. But it almost certainly had the basic story right.
Senator McCain may have been taken aback as well by the CBO’s projection that the bill would result in 16 million fewer people having insurance coverage — something Democrats nearly unanimously portrayed as “taking away” insurance from all of those people. In fact, this projection is based almost entirely on the end of the fines. The CBO estimates that once they can make a decision free of the threat of fines, 15 million people will forgo coverage.
.. We are willing to bet that McCain didn’t know any of this. A lot of health-policy experts are unaware of it too. The legislation was unveiled, after all, only a few hours before the vote. There were no hearings on it. The CBO had only provided the relevant numbers the same day, with the inferences we have made above left unstated.
Republican leaders such as Mitch McConnell were asking senators to vote for a poorly understood bill that would likely raise premiums in the expectation that something better would emerge from a conference committee between the House and the Senate. But there was a chance that the House would end up just passing the skinny bill. And if the conference committee was capable of coming up with something better that could get 51 votes in the Senate, why couldn’t the Senate come up with that “something better” itself?
.. Here Senator McCain deserves criticism for naïveté. He believes that there should be bipartisan reforms to Obamacare (which is a far cry from what he had previously campaigned on).
But the Democrats have made it clear that the only “reforms” that interest them are increased taxpayer commitments to shoring up the program, including increased subsidies to the insurers. In practice, this option would amount to higher spending and, at best, a fig leaf of reform; it would become law through the votes of nearly all Democrats and a handful of Republicans.
.. Option three, the “let it burn” approach, is simply untenable.
.. Option three is likely, then, to be option two in slow motion.
.. Consideration of the alternatives should bring Republicans back to option one. Try, try again, but this time with more deliberation.