Conservatives Blast Biden for Role in Bork and Thomas Hearings

By Pete Winn | August 27, 2008 | 8:27am EDT

Conservatives say that for 27 years, Sen. Joe Biden has served as a liberal front man for attacking conservative judicial nominees and principles.

( – Sen. Joe Biden (D-Del.) may be best remembered for his long tenure on the Senate Judiciary Committee – especially for the way that he has handled judicial nominations.
“Sen. Biden has a strong record of opposing judicial nominees with hostile anti-choice records,” said Nancy Keenan, president of the liberal group NARAL Pro-Choice America, in a statement.
Liberals are pleased with his record, especially his opposition to the recent Supreme Court nominations of John Roberts and Samuel Alito.
“He voted against George W. Bush's two anti-choice nominees to the U.S. Supreme Court, John Roberts and Samuel Alito, and he opposed anti-choice Justice Clarence Thomas' nomination to the Court as well as multiple anti-choice nominees to lower federal courts,” she added
But conservatives say that for 27 years, Biden has served as a liberal front man for attacking conservative judicial nominees and principles – notably during the confirmation hearings of Judges Robert Bork and Clarence Thomas.
“Basically, Joe Biden’s role on the Senate Judiciary Committee has been as a front man for the far left, despite all the talk about his centrism,” Mark Levin, president of the Landmark Legal Foundation, told
From 1981 to 1987, Biden served as the ranking minority member of the committee. He served as chairman from 1987 to 1995, and as ranking Democrat from 1995 to 1997. He still sits on the Judiciary Committee.
Levin said Biden has “spent three decades trying to transform the federal judiciary into a kind of activist oligarchy.”
The outspoken conservative talk-show host pulled no punches about Biden.
“Joe Biden has had his finger in every tawdry hearing in the Senate Judiciary Committee in my memory,” Levin said. “He has lowered the standard of debate. He has politicized the confirmation process. He has used his position to defame a number of nominees, including Bob Bork and Clarence Thomas, and there’s no road too low that he won’t travel.”
Bruce Hausknecht, judicial analyst for the conservative Focus on the Family, said Biden has played a direct role in transforming the Senate confirmation process for Supreme Court nominees from a perfunctory bipartisan exercise in the early ‘80s into today’s contentious – and destructive -- ideological battles.
“You can trace back the origins of our current confirmation spectacles to the days when Joe Biden chaired the Judiciary Committee for the Robert Bork and the Clarence Thomas hearings in ‘87 and ’91,” Hausknecht said. “Those particular hearings set the stage for the confirmation wars of today -- what, ironically, Sen. Biden now calls a ‘kabuki dance,’ as if he had no hand in creating it.”
‘Kabuki Dance’
“Kabuki dance” is a term that Biden used during the 2005 confirmation hearings of John Roberts to describe the now-chief justice’ refusal to answer questions about how he would rule on particular issues that might come before the High Court.
"You have managed to convince (conservative Kansas Republican) Sen. Brownback that you're on his side, and you have managed to convince (liberal Massachusetts Democratic) Sen. Kennedy you're on his side," Biden said to Roberts, during the hearing.
"We're rolling the dice with you, judge, because you won't share your views with us. You've told me nothing in this Kabuki dance. The public has a right to know what you think."
Manny Miranda of the Third Branch Conference, a conservative group focusing on judicial nominations, said the comment was ironic, given the fact that it was Biden who first told a Supreme Court nominee – liberal Ruth Bader Ginsburg in 1993 -- that she didn’t need to answer every question put to her by the Senate.
“Judge . . . you not only have a right to choose what you will answer and not answer, but in my view you should not answer a question of what your view will be on an issue that clearly is going to come before the Court in 50 different forms,” Biden said during Ginsburg’s confirmation hearing.
Miranda said Biden’s opposition to the Roberts nomination, and his no vote, violated the policy Biden had himself articulated in the ‘80s -- that he would never vote against a qualified nominee for ideological reasons alone.
Since 2001, meanwhile, Biden has joined with other Senate Democrats in helping to bottle up or block President Bush’s judicial nominees from gaining up-or-down votes, Miranda said.
But Biden’s opposition to conservatives is hardly new. Since the late ‘80s, Biden has opposed almost every conservative nominee for a court position.
In 1986, Biden voted for a measure to reconsider the vote confirming President Reagan's nomination of Daniel A. Manion to be a circuit judge for the 7th U.S. Circuit Court of Appeals in Chicago. Manion was considered a prominent conservative lawyer whom liberals opposed on the grounds of his conservative ideology. The motion was quashed, but it took the vote of then-Vice President George H.W. Bush to break the 49-49 tie. Manion is still serving on the federal bench.
Again in 1986, Biden voted against the nomination of Justice William Rehnquist to be chief justice of the United States. Rehnquist was confirmed on a vote of 65-33.
Ironically, the one conservative that Biden actually voted for is Justice Antonin Scalia, who won unanimous Senate confirmation in 1986. Biden, however, later said he “regretted” his support for the conservative justice.
Biden’s votes on court-related matters, meanwhile, have done nothing to endear him, conservatives say.
In 1987, as chairman of the Senate Judiciary Committee, Biden joined Senate Democrats and some Republicans in voting to kill an amendment offered by then-New Hampshire Republican Sen. Warren Rudman to cut funding for the controversial Legal Services Corporation by requiring that 97 percent of its annual funding go directly to legal service for the poor. The measure passed on a 70-28 vote.  
In 1992, Biden voted against a measure sponsored by then-Sen. Jesse Helms (R-N.C.) expressing the sense of the Senate that the Supreme Court should reverse its previous ruling prohibiting voluntary school prayer. The amendment was rejected 38-55, with Biden joining the majority.

Also in 1992, Biden voted to override President Bush's veto of a bill to end the so-called “global gag rule” and allow taxpayer-funded family planning clinics to advocate abortion as a family planning method. The override passed 73-26
In 2002, Biden supported a motion to broaden the definition of "hate crimes" to include homosexuality and to make hate crimes subject to investigation and prosecution by the federal government, even if no federal law was broken.
The ‘Borking’ of Bork and Thomas
But far and away, it was how Biden handled the Supreme Court nominations of Robert Bork in 1987 and Clarence Thomas in 1991 that drew Biden the enmity of conservatives.
Professor Stephen Calabresi of Northwestern University Law School told that even though he thinks Biden is “a likeable guy,” the former Delaware prosecutor was anything but likeable during his time as head of the Senate Judiciary Committee.
“The Bork hearings were themselves a travesty of justice,” Calabresi said. “Judge Bork was at the time, and is still, a distinguished constitutional scholar and government official who held many important posts in the executive branch and in the judiciary, and Sen. Biden basically organized a partisan smear campaign against Judge Bork.”
In October of 1987, federal appeals court Judge Robert H. Bork’s nomination to the United States Supreme Court was rejected in a Senate vote of 42-58 – but only after an intense pressure campaign of liberal activist groups, including People for the American Way, the National Organization of Women and NARAL -- the National Abortion Rights Action League.
“Liberal special interest groups worked hand-in-hand with the liberal members of the Judiciary committee to sink Bork, and Biden was in charge of it all,” Hausknecht said.
Calabresi said that even though it was Biden’s liberal compatriot on the committee, Sen. Edward Kennedy (D-Mass.) who was the most visible in leading the attack on Bork, Biden was hardly a mere bystander.
“It’s important to remember that Sen. Biden was the chairman of the committee during the Bork nomination and the Thomas confirmation fights,” Calabresi reiterated.
“He very much planned the hearings, organized them, orchestrated them and caused them to take the form that they did. I think it is fair to say that he was the Grand Inquisitor in the Inquisition. He was the person, really, orchestrating the whole show.”
Biden allowed unprecedented hostile questioning of Bork to take place -- and scheduled a large number of “very hostile witnesses,” Calabresi said.
“(Biden) dragged out the hearings substantially” he added. “There was a lot of time before the hearings to allow outside left-wing groups to gin-up a political campaign against Judge Bork. In general, he treated the Bork hearings more as if they were about electing a Supreme Court justice, than about deciding to ‘advise and consent’ about a presidential nomination.”
The Bork hearings became a negative “landmark,” the law professor charged.
“We went from having a process where the Senate gave its advice and consent to nominations, to one where the hearings became kind of a mini-national election, and depending on the full results after the hearing, the Senate would either ratify the nominee or nor. I think that’s a very unfortunate change in our constitutional structure – and one that has discouraged many talented people from wanting to serve in the judiciary today.
In the Thomas hearings, meanwhile, Biden allowed another “smear campaign” – one which “went from partisanship to being very personal,” Calabresi said.
“The Thomas hearings were, if anything, even worse, because they descended into the personal, and became really, almost a circus because of Sen. Biden’s inability to control the hearings,” he added.
Hausknecht said Biden allowed the Thomas hearings “to degenerate” into “a personal show trial” by letting University of Oklahoma law professor Anita Hill make accusations about alleged improper remarks and actions she attributed to Thomas.
Levin said Biden’s handling of the case had reduced the Senate confirmation hearing to the discussion of “pubic hairs on Coke cans” – a reference to the most notorious allegation Hill made of a “sexually harassing” comment, supposedly from Thomas.  
Thomas’s recent autobiography, “My Grandfather’s Son: A Memoir,” accuses Biden of unfair treatment, noting that Biden had promised Thomas “would be considered on the basis of his qualifications alone.”
In 2001, 10 years after the hearings, Biden had harsh words for Thomas: “I think that the only reason Clarence Thomas is on the Court is because he is black. I don't believe he could have won had he been white.”
Filibuster Joe
Calabresi, meanwhile, said that Biden has played a role in the efforts by Senate Democrats over the last seven years to block President Bush’s judicial nominations.
“He’s been a pretty adamant filibusterer, and has been very much a party to the filibustering of judicial nominees,” Calabresi said. “I think that filibustering and failing to give people an up-or-down vote, has been very much a continuation of what started with the Bork hearings and the Thomas hearings.
Miranda, who is a former counsel to the Senate Judiciary Committee, said Biden not only tried to “bork” Alito’s and Roberts’ Supreme Court nominations, he has taken part in efforts – and votes – to bottle up the appeals court nominations of Miguel Estrada, Caroline Kuhl and Priscilla Owen.
Estrada, who was born in Honduras and came to America as a young man speaking no English, worked his way through Harvard Law School with honors, then served as a Justice Department attorney and argued numerous cases before the Supreme Court – but Senate Democrats never allowed Estrada to received an up-or-down vote from the Senate Judiciary Committee on his nomination to the U.S. Court of Appeals for the District of Columbia Circuit. 
After three years of waiting, Estrada withdrew his name from consideration, Miranda said.
Priscilla Owen, meanwhile, was a justice of the Texas Supreme Court when she was nominated in 2001 for a position on the 5th Circuit U.S. Court of Appeals. She did not receive a confirmation vote until May 2005, thanks to a compromise arranged by a bipartisan group of moderate senators known as “the Gang of 14.”
“These were nominees, who were perfectly qualified, but for the fact that they were being ideologically attacked, fit the standard Biden articulated in the ‘80s, which was that he would never vote against someone for ideological reasons alone. And he violated that standard when he voted against Priscilla Owen.”
Calabresi, meanwhile, said it is Biden’s handling of the Bork and Thomas nomination hearings that the conservative legal community will always think of when Biden’s name is mentioned.
“Sen. Biden hasn’t run many things as a senator,” Calabresi said. “The one thing he has run of importance are those two hearings, and he ran them very badly, and the judicial confirmation process hasn’t been the same since.”
A request to Biden’s office for comment has been referred to the senator, who has been tapped as Sen. Barack Obama’s running mate and is giving a speech Wednesday night at the Democratic National Convention in Denver.

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