Joe Biden, if he wins the White House, will have the most experience with the federal courts of any president in modern times. His influence on the judiciary has been in both high-profile battles and under-the-radar impacts.
As he moves toward formally entering the Democratic presidential race, Joe Biden has repeatedly expressed regret for how he handled one of the most consequential challenges of his career in the Senate — the 1991 hearings into Anita Hill’s sexual harassment allegations against Supreme Court nominee Clarence Thomas.
But a broader fight was brewing over judicial philosophy. Reagan’s attorney general, Edwin Meese III, laid down the marker in 1985 that the administration would advance the theory of “original intent,” in which judges would narrowly interpret the Constitution based on the understanding of the framers.
Being in the majority posed its own challenges; Biden had to corral Democrats who ranged from progressives such as Kennedy to conservative Southern Democrats, in addition to moderate Republicans who could be coaxed to cross party lines.“That was no easy feat,” said Nan Aron, president of Alliance for Justice, a progressive judicial advocacy group.
Kennedy famously launched an attack from the left, warning that “Robert Bork’s America” would mean a return to back-alley abortions and segregated lunch counters. Biden, meanwhile, tacked more to the center, arguing that Bork’s legal theory could lead to overturning precedent that upheld a married couple’s right to buy contraception., including six Republicans.
“It was an orchestrated attack — an innovation, an escalation and most people consider it to be the start of the modern judicial wars,” said Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, a Libertarian think tank.Biden’s allies point to the domino effect of the Bork debacle as one of his great achievements. Instead of an archconservative, Reagan ultimately nominated Anthony M. Kennedy, a moderate swing vote on the Supreme Court.
Biden hoped to repeat that winning formula when Bush nominated Clarence Thomas in 1991. But civil rights groups were divided on going after a Black nominee, and Thomas did not have nearly the extensive record to pick apart as Bork did.Anita Hill’s allegations against Thomas of sexual harassment threw those proceedings in further disarray. Biden infuriated Republicans by reopening the hearings to Hill’s testimony, and angered liberals by not fully investigating her allegations.
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