Why Biden Won’t Talk about Judges

The Democrats know that no matter how upset their base is about Mitch McConnell’s power plays, the issue of judges is a winner for Mr. Trump.

September 3, 2020 • Commentary
This article appeared on The Wall Street Journal on September 3, 2020.

This was supposed to be the year the Democrats finally made the Supreme Court a campaign issue, but there was no talk of Merrick Garland or even Ruth Bader Ginsburg at the party’s convention. The words “Supreme Court” were uttered only once in four nights, mentioned in passing by Sen. Chuck Schumer. The Democratic Party platform asserts that President Trump “has packed our federal courts with unqualified, partisan judges” and pledges to “appoint people to the bench who are committed to seeing justice be served,” so why stay silent? Perhaps because Joe Biden knows that swing voters side with Republicans on the issue—as they did in 2016—and that it’s a weakness for him personally.

Mr. Biden became chairman of the Senate Judiciary Committee after the 1986 elections, just in time to preside over the confirmation hearings for Robert Bork. In November 1986 Mr. Biden pledged to be fair: “Say the administration sends up Bork and, after our investigations, he looks a lot like Scalia. I’d have to vote for him, and if the [special‐​interest] groups tear me apart, that’s the medicine I’ll have to take.” Justice Antonin Scalia had been confirmed 98–0 earlier that year, when Republicans controlled the Senate.

But then in June 1987, having heard from those groups on the presidential campaign trail, a chastened Mr. Biden advised Reagan that if he nominated Bork, “you’ll have trouble on your hands.” Sen. Ted Kennedy led the anti‐​Bork demagoguery, but Mr. Biden’s sustained if sometimes imprecise attacks played a key role in derailing the nomination. During the confirmation hearings he presented a vague theory of a living Constitution and how rights expand with the times, to contrast with Bork’s view of fixed constitutional meaning.

Mr. Biden later orchestrated the Senate floor debate and inserted into the record a list of nearly 2,000 law professors who were against Bork, representing about 40% of practicing legal academics nationwide. As committee chairman, he coordinated the assault with Kennedy and others.

On June 25, 1992, having failed to stop the Thomas confirmation and fearing further Republican appointments, Mr. Biden went to the Senate floor to urge President George H.W. Bush not to nominate anyone if a Supreme Court vacancy arose before that fall’s election. That speech would resurface 24 years later, when President Obama made a nomination in the final year of his second term, leading to debate over the “Biden rule.”

In the meantime, Mr. Biden had voted against Chief Justice John Roberts’s confirmation, which half the Democratic caucus supported, and Justice Samuel Alito’s, which, along with Sens. Schumer and Obama, he tried to filibuster. A decade later Mr. Obama expressed regret over that tactic and now calls the Senate filibuster a “Jim Crow relic.” Mr. Schumer declared in July 2007, not even an election year, that the Senate should not confirm another George W. Bush Supreme Court nominee “except in extraordinary circumstances” because the court was “dangerously out of balance.”

That affirmation of the Biden rule would come back to bite the Democrats. After Scalia died in February 2016, Vice President Biden said the president and Senate should “work together to overcome partisan differences” and confirm a replacement nominated by Mr. Obama, apparently disclaiming his earlier speech. But don’t think that means he wants moderates on the high court. Last December Mr. Biden said that he’d appoint judges who see the Constitution as a “living document,” echoing his three‐​decade‐​old attacks on Bork and making clear that there would be no olive branch. Unlike Mr. Trump, however, he has no plans to release a list of potential nominees, knowing that anybody he names would hurt him politically.

So it goes for Mr. Biden, who presents himself as an affable back‐​slapper but on judicial nominations has been a divisive brawler. During a 36‐​year Senate career, the only Republican Supreme Court nominees he voted for were confirmed unanimously or nearly so (90–9 in the case of Justice David Souter). He did everything in his power to defeat the rest. And that goes double for his vice‐​presidential nominee. Sen. Kamala Harris smeared Judge Brett Kavanaugh with baseless innuendo, voted no on 80% of the recorded votes for Mr. Trump’s judicial nominees that she attended and refused to play ball with the White House to fill “judicial emergency” slots in California.

It is no wonder the Biden campaign hasn’t been talking up the Supreme Court any more than Hillary Clinton did. The Democrats know that no matter how upset their base is about Mitch McConnell’s power plays, the issue of judges is a winner for Mr. Trump.

About the Author
Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute