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October 24, 2008

A bad Biden benchmark

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Twenty-one years ago today, a cabal of liberal senators prevented one of the greatest legal minds of the 20th century from sitting on the Supreme Court. Robert Bork, then a judge on the D.C. Circuit Court of Appeals and a former solicitor general, lost by a vote of 58-42 - an outcome Sen. Joseph Biden praised in his recent debate with Gov. Sarah Palin.

Mr. Biden boasted he led the fight against Judge Bork after realizing the "ideology" of nominees should be a considerable factor. But what Mr. Biden hails as a great "intellectual change" of his own has served only to insert vitriolic party politics into the judicial process and muddle the public's understanding of the judiciary's proper role.

Judge Bork's confirmation hearings are seen by many as a low-watermark in the history of judicial nominations. Those opposing Robert Bork launched an unprecedented campaign against him, utilizing the politics of personal destruction to vilify an honorable man with an outstanding judicial record. Between leaking his video-rental record (which revealed nothing press-worthy) and distorting his civil rights views, Judge Bork's opponents sought to stall his confirmation by any means imaginable. None of this, of course, related to his qualifications or understanding of the law.

Mr. Biden brags that he was the first Judiciary Committee chairman to "forthrightly state that it matters what your judicial philosophy is." Yet Mr. Biden confuses "philosophy" with "ideology," erroneously using the words interchangeably. Asking a nominee about his judicial philosophy involves inquiring about the methodology he would use to find the meaning of the law's text. But questioning about ideology (as that term is used by Mr. Biden), is entirely outcome-based.

Keeping to this latter approach, Mr. Biden routinely pressures nominees to state how they would have ruled in numerous cases, including cases involving issues likely to re-emerge before the court, such as abortion cases. Candidates have responded by suggesting that answering such questions will undermine their ability to judge cases impartially by the merits - a response that has only irritated Mr. Biden.

For an example of the "judicial philosophy" approach, Mr. Biden need look no further than his opponent, Mrs. Palin. To better understand her approach to judicial nominations, the Legal Times interviewed candidates considered by Palin for a recent spot on the Alaska Supreme Court.

Andy Harrington, executive director of Alaska Legal Services Corp., was one of four nominees, and his recollection of the interview process sheds light on Mrs. Palin's approach to selecting judges. His interview occurred only days after the state supreme court struck down a parental-consent statute. Despite Mrs. Palin's staunch opposition to what she called an "outrageous" ruling, Mr. Harrington said he was pleasantly surprised she didn't ask him about the case during the interview.

Mr. Biden's approach to judicial confirmations after the Bork defeat demonstrates he stayed true to his promise of looking past mere qualifications and intellect. When questioning Chief Justice nominee John Roberts about end-of-life issues, Mr. Biden asked him to consider whether the state has the authority to make laws preventing the removal of comatose family members from life support. As if to pre-empt Justice Roberts from making an argument from law, Mr. Biden demanded that Roberts answer the question "as a father ... not what the Constitution says; what do you feel?"

Justice Roberts correctly asserted he wouldn't answer in the context of a father because it is not the role of a judge to make such decisions based on personal preferences. And indeed it is not. The role of a judge is to interpret the law as it is written, not to confer legal status on his personal policy predilections, his affinity for any particular litigant, or his own feelings.

Of course, there's a reason Mr. Biden wants judges to rule based on such whims, because, as Judge Bork noted in his best-selling book "The Tempting of America," "If [judges] can be persuaded to abandon the idea of original understanding, they are quite likely to frame constitutional rules that reflect the assumptions of modern liberal culture." This is, unfortunately, the goal of Mr. Biden's emphasis on ideology: assuring that judges promote liberal policies from the bench.

Prior to Robert Bork, senators evaluated candidates based on their qualifications - their knowledge of and respect for the law, judicial temperament and demonstrated integrity.

Whether Mr. Biden is advising a President Obama on judicial issues come January or continues to represent the citizens of Delaware on Capitol Hill, he would best serve the American people by reversing his great "intellectual change." Only then can he help restore the confirmation process to its ordered constitutional role, not one in which senators attempt to "bork" judges based on predicted judicial outcomes.

Deborah O'Malley is a Research Associate in the Center for Legal and Judicial Studies at The Heritage Foundation

First appeared in The Washington Times

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