In my recent presentations on the Supreme Court nomination process, I’ve focused greatly on the role that Joe Biden, as chair of the Senate Judiciary Committee played on the Supreme Court. His power to stop the Bork nomination, paved the way for the Kennedy nomination, and altered the course of human events. At the New Yorker, Jeff Toobin writes that the Supreme Court should be viewed as part of Biden’s legacy.
Biden eschewed Kennedy’s heated rhetoric about Bork, but the chairman used the confirmation hearings to conduct a meticulous dissection of the nominee’s record as a scholar and judge. Biden called Laurence Tribe, the Harvard law professor, as a witness, to explain how far out of the mainstream Bork’s views were, and how perilous his confirmation would be for the Court and the country. The hearings mobilized popular opinion against Bork, and the Judiciary Committee voted against him by nine to five, and the Senate rejected him, fifty-eight to forty-two.
Bork’s defeat had immense consequences because Reagan ultimately nominated Anthony Kennedy to fill that seat. Kennedy has been a mercurial and sometimes maddening figure for the past twenty-eight years, but one thing has long been clear: he is no Robert Bork. Like virtually all Republican nominees, Kennedy has been generally conservative, but he also cast a crucial vote to guarantee the survival of Roe v. Wade in 1992 (in the Casey decision), and he has led the Court’s embrace of gay rights, most notably in this year’s Obergefell decision on marriage equality.
In confirmation hearings, Biden has been very much himself—a decent, honorable man, and an insufferable windbag. (Given thirty minutes to question John Roberts, Biden talked for twenty-four minutes.) So many years have passed that Biden’s record on the Judiciary Committee may well have little impact on his potential candidacy for President. But if Biden never did another thing as a Senator than protect the nation from Robert Bork as a Supreme Court Justice, he will have a more significant, and noble, legacy than many Presidential candidates.