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Some Potential Legal Implications of an Obama/Biden White House: What Biden's Senate Record Reveals


Wednesday, Aug. 27, 2008

Most analyses that take a positive perspective upon Barack Obama’s choice of Joe Biden as his running mate have pointed to Biden’s foreign policy experience, his working-class roots in Pennsylvania, and his political fighting spirit. Meanwhile, critical voices have noted Biden’s penchant for gaffes and his long-windedness. No doubt some or all of these qualities will prove important in the election campaign and, should the Democratic ticket succeed in November, in office.

Yet there is another strongly relevant aspect of Biden’s past—one of particular interest to those who care about the law—deriving from his many years of experience on the Senate Judiciary Committee, including roughly sixteen years as either Chairman or ranking minority member of that committee. During that time, Biden has burnished a reputation as a supporter of an active role for the Senate in judicial confirmation hearings; a strong believer in a substantial federal presence in crime control, especially with respect to crimes involving gender-motivated violence and drugs; and a defender of the prerogatives of Congress relative to the Supreme Court.

To be sure, Biden’s views on these matters can hardly be expected completely to define Obama’s views. As a former President of the Harvard Law Review and former teacher of constitutional law at the University of Chicago, a President Obama would likely rely on his own judgment about legal policy, rather than simply relying on the advice of his aides or his Vice President.

Nonetheless, Biden’s experience as a six-term Senator was undoubtedly part of what appealed to Obama, and it is hard to imagine anyone wielding as much influence over judicial matters and congressional relations with a President Obama as a Vice President Biden. Further, with a paper trail much longer than Obama’s, Biden offers commentators more to analyze on these (and other) issues, and makes predictions regarding his potential vice presidency somewhat easier. Accordingly, and with the foregoing caveats in mind, let us consider how a Biden-influenced Obama Presidency might address some key legal questions.

The Merits of Judicial Appointments

As Chairman of the Senate Judiciary Committee, Senator Biden presided over the two most contentious confirmation hearings of the last quarter century: President Reagan’s failed nomination of Robert Bork, and the first President Bush’s barely successful nomination of Clarence Thomas.

Conservatives have long complained that these hearings were unfair to the respective nominees, but whatever the merits of those complaints, Biden was consistently fair in his public decisions and his own questioning of the nominees. He ended up voting against confirmation of Bork and Thomas, in both cases justifying his decision by his judgment that their espoused judicial philosophies were too far outside the range of what Biden considered reasonable, but eschewing personal attacks.

On the merits, Biden is pretty clearly a mainstream liberal on constitutional matters. For example he (and for that matter, Obama) voted against confirmation of the current President Bush’s Supreme Court nominations of Chief Justice John Roberts and Justice Samuel Alito. Biden could thus be expected to share the generally liberal leanings of Obama on appointments to the federal courts and, should a vacancy occur, the U.S. Supreme Court.

Biden on the Appointments Process: An End to Kabuki Dancing?

Biden also has strong views about the process of judicial appointments. Biden, New York Senator Chuck Schumer, and a number of other Senators have been outspoken proponents of the view that the Senate’s constitutional power to give “advice and consent” to Presidential nominations enables—indeed, obligates—Senators to make independent policy judgments about particular nominees. Under this view, even if a nominee has impeccable professional qualifications (as was certainly true of both Roberts and Alito), the Senate is still entitled to reject him or her, in much the same way that we expect the President to choose an ideologically simpatico nominee, not just one who has the requisite professional credentials.

Given Biden’s view about the Senate’s role in judicial appointments, he has become increasingly frustrated over the years with the penchant of nominees to avoid giving concrete answers that could prove disqualifying with one or another constituency. In one of his more memorable phrases, Biden referred to the Roberts confirmation hearings as a “kabuki dance” because of the ability of the nominee to hide his real views.

If the shoe is on the other foot, will an Obama/Biden Administration claim that its nominees are entitled to be confirmed simply because they have the requisite professional credentials? If so, that would not be the first time a politician took an opportunistic position on the appointments process. For example, when Democrats controlled the Senate in the Clinton Administration, Republicans claimed the right to filibuster judicial appointments; when Democrats threatened to filibuster Bush appointees, those same Republicans denounced the filibuster as illegitimate; and vice-versa.

It is also possible, however, that an Obama/Biden White House would allow for a greater Senatorial role than power politics would suggest. Much will depend, of course, on the composition of the Senate, but it is very unlikely that Democrats will have a filibuster-proof majority. Under such circumstances, the only way for a judicial nominee to be forthright about his or her views and hope to be confirmed is for that nominee truly to be a moderate. Thus, even if on substantive matters, Obama and Biden would prefer to nominate liberal judges and Justices, Biden’s procedural commitments—if honored by Obama—could lead a President Obama to nominate mainstream moderates.

The Role of Congress

In at least three additional respects, Senator Biden has been a champion of congressional power. First, he has consistently favored strong federal legislation on issues that he regards as national in scope, such as domestic violence and drug use, even as some have argued that these issues are best left for the states.

Second, Senator Biden has sharply disagreed with Supreme Court decisions saying that the Court alone—and not the Court plus Congress—has the power to decide the scope of constitutional rights. In particular, Biden thinks the Court aggrandized its own power, when, in a series of cases decided over roughly the last decade, the Justices invalidated acts of Congress purporting to enforce the Fourteenth Amendment. Biden was especially miffed by the Court’s 2000 ruling in United States v. Morrison, which invalidated the civil remedy provision of the Violence Against Women Act, a law Biden sponsored.

Third, both Senators Biden and Obama have been outspoken critics of the prerogatives asserted by the Bush Administration on behalf of the Executive Branch. On every major controversy—including the detention and treatment of enemy combatants, domestic electronic surveillance, the exercise of the war power, and the use of signing statements—Biden and Obama have said (and for the most part have voted consistently with the view that) the President must yield to the will of Congress.

The Return of the Senate Path?

If Senator Biden’s demographic appeal complements that of Senator Obama, in other respects Biden’s qualifications closely duplicate those of Obama. Like Obama, Biden has taught constitutional law (in Biden’s case, as an adjunct professor at Widener Law School in Wilmington, Delaware). And like Obama—and for that matter, McCain—Biden is a Senator.

Until relatively recently in American history, Senate experience often paved the way to the White House. But each of the last four sitting or former Senators to win his party’s nomination—Mondale, Dole, Gore, and Kerry—has lost the general election. Richard Nixon was our last President to have served in the Senate, and John F. Kennedy was the last sitting Senator to be elected President. That was nearly half a century ago.

The Senate’s Presidential losing streak will obviously be broken this year, as either Senator McCain or Obama will win the office. But exactly how the experience of having served in the Senate will shape the next President’s relations with Congress is unclear. President Lyndon Johnson—the “Master of the Senate” in Robert Caro’s less- than-flattering description—skillfully used his knowledge of and relationships with his former Senate colleagues to push his substantive agenda.

Obama has not served in the Senate long enough to have developed Johnsonian chits, but Biden has been there since 1973, the year John McCain returned from Vietnam. McCain was first elected to the Senate in 1986. Thus, whoever wins the election, the next Administration will have closer ties to the Senate than has any White House in the last forty years.

The imperatives of governing could well lead either a President McCain or an Obama/Biden Administration to find new grounds for appreciating executive prerogatives. But at least for now, it appears that the next President will likely take a more cooperative and respectful view of Congress than the current one has.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at

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