Joe Biden, the father of ‘Borking’ By George Neumayr,
https://thehill.com/opinion/campaign/517743-joe-biden-the-father-of-borking
Supreme Court nomination hearings have gone from serene to savage, thanks largely to Joe Biden.
As head of the Senate Judiciary Committee, he presided over the infamous Robert Bork hearings. His smearing of Bork for his original-intent judicial philosophy transformed hearings for Supreme Court nominees into bloody ideological battles. Henceforth, all conservative nominees were subjected to “Borking.”
Brutal to Bork from the start, Biden treated him not as a serious judge but as a stooge for what Biden called the “Reagan-Meese” agenda. Biden’s transparently unfair treatment of Bork was so bad even The Washington Post editorialized against Biden at the time:
While claiming that Judge Bork will have a full and fair hearing, Senator Joseph Biden this week has pledged to civil rights groups that he will lead the opposition to the confirmation. As the Queen of Hearts said to Alice, “Sentence first—Verdict Afterward.”
How can he possibly get a fair hearing from Biden, who has already cast himself as the role of prosecutor instead of a juror in the Judiciary Committee? If there is a strong, serious case to be argued against Judge Bork, why do so many Democrats seem unwilling to make it and afraid to listen to the other side?
In a forecast of what his own judiciary would look like, Biden opposed Bork not because he lacked the legal credentials to be on the court – Bork was considered one of the leading legal scholars in the country – but because Bork didn’t conform to Biden’s view of a good judge as a leftwing legislator from the bench.
Biden lectured Bork: “Will we retreat from our tradition of progress or will we move forward, continuing to expand and envelop the rights of individuals in a changing world which is bound to have an impact upon those individuals’ sense of who they are and what they can do?…In passing on this nomination to the Supreme Court, we must also pass judgment on whether or not your particular philosophy is an appropriate one at this time in history.”
Bork parried that judges aren’t supposed to interpret the law in light of the current political zeitgeist but according to its original meaning. “If a judge abandons intention as his guide, there is no law available to him, and he begins to legislate a social agenda for the American people,” said Bork. “That goes well beyond his legitimate powers. He or she then diminishes liberty instead of enhancing it. The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.”
But Biden didn’t listen. He scoffed at Bork’s originalism and played dirty. Borrowing a page from Sen. Ted Kennedy (D-Mass.), Biden portrayed Bork as a wild-eyed Puritan prepared to break down bedroom doors. In his memoir Promises to Keep, Biden congratulates himself for this low strategy. He recalls testing his portrayal of Bork as an enemy of “privacy” at a mall in Delaware: “People who knew me would walk up and say, ‘Hey, Joe,’ and I’d ask them if they thought married couples had the right to use contraception. They looked at me like I was crazy. ‘Of course!’ And when I asked why, none of them said the right to privacy. They all said, ‘The Constitution.’”
This emboldened Biden in his gross caricature of Bork. Biden was in effect punishing Bork for not revising his jurisprudence to accommodate the left’s agenda of cultural change.
Biden considers his defeat of Bork one of the most glorious moments of his career. But for the Republic, it marked one of the lowest. It further cemented the groundwork for a politicized judiciary which has taken decisions out of the hands of the people and placed them in the hands of nine lawyers. It undermined the integrity of the confirmation process. And it led traumatized Republican presidents to appoint wobbly judges to the court like David Souter.
These days Biden talks about it as a moment of high principle. In fact, it was a desperate act of pandering to the far left of his party — an attempt at rehabilitation after his campaign-ending plagiarism scandal in 1987. “He needed to be vindicated,” said his wife Jill to reporters. “It was about Bork. It was about Bork’s politics, but it was also about Joe.”
Nothing has changed. Biden continues to seek a judiciary in his own image — not an independent branch of government faithful to the Constitution, but an extension of his party and politics.
George Neumayr is author of “The Biden Deception.” Follow him on Twitter @george_neumayr.
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