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Wednesday, September 10, 2008

Biden puffery
Tom Smith

This is just embarrassing. (via here.) If Jeffery Rosen wants a place in Obama-Biden adminstration, he should please seek it in private. I mean, that's related to the right of privacy, isn't it? What acts adults want to engage in is their own business, but I should not have to witness them. I guess I clicked on the link, but in my own defense, I didn't know what I was in for.

Characterizing the Bork hearings as some sort of seminar for middle America on the right of privacy is among the silliest things I have ever heard. The Bork hearings were many things, almost all of them ugly. Essentially, you had an extremely distinguished jurist and legal scholar (and one far nicer to his students, I can tell you, than most of his colleagues at the Yale Law School) cast as some sort of demon for daring to take the position that a right of privacy is not to be found in the Constitution. Which, by the way, it is not. Sure, yeah, if you are going to make up a right, it would definitely be on my list of ones to make up, but I think it was a good thing to have a few constitutional scholars willing to say, against all odds, that there was a problem attributing to the constitution things that weren't in there. But alas, no, not even one can be permitted, and certainly not one on the Supreme Court. As far as I can tell, constitutional interpretation is still in the mess of trying to reconcile the idea that a constitution means something but not anything, with the awkward fact that so many rights have been just made up over the years. Good luck with that.

It is particularly ironic that this inspiring civics lesson that Rosen depicts on the right of privacy was accompanied and followed by so many grotesque invasions of privacy, starting with Judge Bork, moving on to Justice Thomas, and bringing us right up to the present day of what sex education was gotten by Sarah Palin's 17 year old daughter. Funny how that works. You start destroying the village in order to save it, and pretty soon everybody is dead or covered in blood.

Thanks for the memories, Joe. But I guess none of the bad stuff was Biden's fault. He gave into calling Anita Hill (for her utterly perjurious testimony, but that's another story) as a witness, Rosen breathlessly informs us, only after the pressure became "irresistible." Brave, brave, brave Sir Joe. And, equally gallantly, Rosen tells us, Biden held out against calling even more witnesses about Justice Thomas's alleged interest in pornography. No doubt that would have offended Biden's sense of fair play. Rosen manages a laughably weak commendation of Biden and yet another smear of Thomas in a single sentence.

I was working in the White House on economic policy during the Bork hearings, and followed them closely. I would have thought a more grotesque perversion of justice would not have been possible, but the Thomas hearings had not occurred yet. The Bork hearings were one of those moments that permanently diminished our political culture, probably irrevocably. And of course, there would have been no need to stop Bork at any cost, had the Supreme Court not created such a vulnerable, because not founded in law, right in the first place. So to protect a made up law we had to throw what were the norms in the legal profession of fairness and civility (such as they were) out the window. Nor is it over yet -- ask Bristol Palin. It's a gift that keeps on giving. And 20 some years after the first Borking (at least the English language, that astute judge, is not deceived), we get to read a journalist piously calling the whole sorry, discouraging, embarrassing, and utterly unedifying mess a cherished moment of public education in the holy right of privacy. I'm sorry, but that's just revolting. Senator Joe was educating Americans on the constitution, all right, but not in the way Rosen thinks.

The Bork hearings were a national disgrace. They were a low point of left-wing McCarthyism, but that is too kind. If they managed to convince members of the public that what's in the Constitution doesn't depend on its words, so much the worse. The Bork hearings wrecked what was left of the comity among people with different views of the constitution. They were a show trial, with the same level of integrity and perversion of legal forms.

Rosen is right about one thing. We do well to remember Biden's role in them, and I do.

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Tom Smith


Thanks for confirming my gut reaction. My most negative impressions of Senator Biden have been watching him during judicial confirmation hearings. I'm sure that many liberal law professors could have cross-examined Bork, Thomas, Alito and/or Roberts effectively and honestly, but Biden certainly did not. To the contrary, I thought he used one cheap shot after another that might sound good to laymen, but was nonsense to anyone familiar with the subject matter. Moreover, one could tell that staffers sometimes provided him with good questions, but he either botched the question or struck out on the obvious follow-ups.

Posted by: PaulD | Sep 11, 2008 6:25:54 AM

So, under all the whitewash and spin, how do you actually feel about Senator Biden, and his fitness for the VP job?

Posted by: C Smith | Sep 11, 2008 6:36:35 AM

As I read Rosen's sonnet to Biden, I could almost hear his Johnny Mathis records playing in the background. What I find most amusing is that Rosen still manages to give the game away: "Biden skillfully defended the right to privacy in terms that middle-class Americans understood, even if his constitutional arguments were questionable." That really summarized that Democratic approach to the judiciary: Liberal are brilliant constitutional scholars because they know when the issue is important enough to ignore Constitution.

Posted by: Paul From Hamburg | Sep 11, 2008 9:14:42 AM

Excellent history lesson, and commentary. Rosen's piece made me wonder if there were two Robert Bork's nominated and I somehow totally missed the second one.

Posted by: Cyrus Spencer | Sep 11, 2008 9:20:02 AM

Thank you for this post. The Bork hearings were one of the main reasons I got interested in politics. My outrage at that show trial, as you put it, changed my view of the Democrats permanently.

It was one of the first things I thought about when I heard that Biden had been named Obama's running mate.

Rosen's article nauseated me. Thanks for the antidote.

Posted by: Idler | Sep 11, 2008 10:21:13 AM

Years ago, I was asked to testify as an expert before a Judiciary sub-committee chaired by Senator Joe. After fifteen minutes of anteroom "prep" by Biden, I told the Democratic Senator who invited me that I could not testify as Biden asked. He told me not to pay any attention to Biden's "prep" and to say what needed to be said. Afterward, Biden was all smiles and congratulations although my comments had often been inconsistent from those he asked me to make.

I was in the trenches with local law enforcement at the time and I remember saying to my senator, "Hell, this guy thinks it's just a game."

Same deal with Judge Bork. Hell, it was just a game. The Vice Presidency? Just a game.

Posted by: neelynzus | Sep 11, 2008 12:31:21 PM

Bork was incompetent. He called the IXth Amdmt an ink blot. He was disqualified for the wrong reason. Still he didn't belong on the court.

Posted by: M. Simon | Sep 11, 2008 3:48:36 PM

We have lots of rights not mentioned in the Constitution. Which is the reason for the IXth and Xth Amdmts.

Justice Thomas is a much better Justice than Bork could have ever been.

The Constitution is a limit on Government not on the people.

BTW the right to privacy from Government intrusion is implied in the IVth.

It would be really nice if those on the Right actually studied the document and its drafting and ratification. Most on the right get it no better than those on the left. Thank the Maker for Thomas.

Posted by: M. Simon | Sep 11, 2008 3:55:22 PM