Joe Biden was on the brink of victory, but he was unsatisfied.
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 Biden was hovering in the Senate chamber, plying Sen. 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 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 Biden’s committee. “But Biden really wanted to get Warner because he had such stature.”
Biden’s entreaties prevailed: 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.
It was also a personal turning point for Biden. In the Bork debate, Biden’s political ethos found its most vivid and successful expression.
A review of Biden’s conduct in the debate — including interviews with 16 people directly involved in the nomination fight, and a review of the hearings and Biden’s speeches — yielded a portrait of 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, 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 — Biden made persuading moderates, rather than exciting liberals, his guiding objective.
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 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, Biden would again take an accommodating approach to his Republican colleagues during Justice Clarence Thomas’ confirmation hearings, allowing harsh and invasive questioning of Anita Hill, the law professor who accused the nominee of sexual harassment. 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 Biden made was aimed at winning over conservative Democrats and moderate Republicans — men like Warner.
Now 92, 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,” Warner said.
The second concerned the caliber of the Senate’s deliberations.
“It was a real, solid, good debate, led by Biden,” Warner said. “He showed extraordinary leadership.”
The outcome was not foreordained, for either Bork or Biden. The debate unfolded at a moment of humiliation for Biden, whose first campaign for president unraveled as the Bork hearings approached their climax. And the judge was no timid adversary, as journalist Ethan Bronner wrote in a book on the nomination.
“Robert Bork,” Bronner wrote, “was a man of war.”
Biden was seated behind a desk in a spacious living room adjoining his study at his Wilmington, Delaware, home. A few aides sat or stood around the room, where pizza was in generous supply. Squared off against Biden was Robert H. Bork — or rather, a convincing simulacrum played by the constitutional scholar Laurence Tribe.
Tribe and Biden would spar for hours in a series of sessions that August, joined occasionally by other legal experts who would help Biden hone his queries on subjects from antitrust regulation to sexual privacy.
“Biden’s questions were really smart, and they also needed some sharpening,” Tribe said in an interview, citing Biden’s tendency to “ask one thing and mean something slightly different.”
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 Biden with suspicion. Taking over one of the Senate’s great committees at a boyish — for the Senate — age of 44, Biden had already split with progressives on the issue of busing as a means of desegregating schools. Until Bork, authors Michael Pertschuk and Wendy Schaetzel would write, 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, 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 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.”
Biden quickly aligned himself with Kennedy, and, at his liberal colleague’s urging, secured an agreement from Sen. 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 Sen. 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, 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: 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 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,” Neas said.
Biden was blunter with his aides: He would not adopt Kennedy’s rhetoric or make abortion his central cause. According to a book Gitenstein published in 1992 about the confirmation fight, 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,” Biden is quoted as saying in the book.
In their sessions, 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?’” Tribe recalled. “He said, ‘Yes, it should count a lot, but I still don’t want to have a flat litmus test.’”
Tribe remembered thinking: “This guy’s a little bit more cautious than I am. But that’s fine, he’s playing a different role.”
Defender of the Senate
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, Biden praised him as man of towering achievement and “provocative” views. Flanked by Kennedy at one elbow and Thurmond at the other, 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,” Biden encouraged Bork, adding in a tone of levity, “Go ahead and bog us down.”
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.
Biden had no such reputation, and 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 Biden, about the meaning of constitutional intent. Biden had offered Specter half an hour for his questions; when Specter balked at the time limit, 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.”
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 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 Biden preferred that its leaders stay there — on the outside.
Aron, who would later clash with Biden over the nomination of Thomas in 1991, said the combination of popular pressure on the Senate and Biden’s high-minded hearings doomed the nominee.
“What defeated Robert Bork was public pressure,” 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, 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,” Biden stressed, prodding 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 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 Neas and Aron. “The man’s been trashed in our house,” Sen. John Danforth, R-Mo., lamented on the Senate floor. “Some of us helped generate the trashing. Others of us yielded to it.”
Biden called 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.
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 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 Biden plays a methodical inside game. And there are no Republicans to be found in the Senate like Specter, who eventually, at Biden’s urging, quit the GOP to become a Democrat before his death in 2012.
Still, Gitenstein said he had encouraged the former vice president to draw public attention to his role in the 1987 court fight. The defeat of 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,” Gitenstein said. “I’ve talked to him about it. He’s got so much on his platter.”
DeConcini, who at 82 is a supporter of 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,” DeConcini said. “I’m just not sure.”
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