Every presidential candidate runs on some combination of two things: what they’ve already done, and what they plan to do next. More experienced candidates like Elizabeth Warren and Bernie Sanders can lean on both equally, while relative newcomers like Beto O’Rourke or Pete Buttigieg tend to focus on the latter. The calculus for Joe Biden is a little different.
The former vice president entered American politics more than four decades ago, and his experience comes at a cost. Since announcing his presidential bid last week, he’s spent most of his time trying to explain, rationalize, or express regret over key moments in his career. So far, he’s avoided rolling out any new policies or initiatives. That raises an obvious question for voters: What exactly is he running on?
No part of Biden’s record has received more scrutiny than the decades he spent championing tough-on-crime legislation while serving in the Senate. He wasn’t alone in those efforts, of course. Democratic and Republican policymakers responded to spiking crime rates in the 1980s with more punitive penalties for drug use and lengthier sentences for prisoners. Seeking to blunt GOP accusations that the Democrats were “soft on crime,” Biden and other top Democrats jockeyed to outdo them. “We finally, finally got it so that it was not a Democratic issue or a Republican issue,” Biden told reporters in 1989.
Biden’s crime proposals were often less severe than those drafted by Republicans at the time. His 1991 anti-crime legislative package, for example, included measures that would bar the federal death penalty for juvenile defendants, people with intellectual disabilities, and cases where “racial patterns” called its legitimacy into question. In response, a spokesman for President George H. W. Bush quipped to The New York Times that those restrictions “would be like having no death penalty at all.”
The Democrats were still plenty harsh, though. Biden played a key role in the passage of the 1994 crime bill, which threw the full weight of Congress behind mass incarceration. The law expanded mandatory minimum sentences, provided billions of dollars in funding for new prisons, and opened federal spigots for local police departments to hire thousands of new officers. Most of the law built on earlier measures Biden championed throughout the 1980s. “For a generation,” Jamelle Bouie wrote for Slate in 2015, “Biden was at the front of a national push for tough drug laws and police militarization.”
Until recently, Biden took pride in this legislative work. He described the 1994 law as the “Biden Crime Bill” as recently as 2015, even while policymakers across the ideological spectrum began to agree that decades of tough-on-crime policies had gone too far. Only recently has Biden begun to step back from parts of the law, like the draconian three-strikes rule and the racist crack-cocaine sentencing disparity. Even then, he’s fallen far short of apologizing for it. “I haven’t always been right,” he told an audience on Martin Luther King Jr. Day this year. ”I know we haven’t always gotten things right, but I’ve always tried.”
Other caveats in Biden’s record abound. His deep foreign-policy experience is marred by the Iraq war: First by his 2002 vote to authorize the George W. Bush administration’s mission to topple Saddam Hussein, which Biden renounced soon after the war began, and then by his 2006 proposal to impose a federal system on Iraq along ethnic sectarian lines. The plan received criticism for resembling the partitions of European colonial rule, though it did not actually propose dividing Iraq into three independent countries.
In theory, Biden’s long tenure as the top Democrat in the Senate Judiciary Committee should also make him the perfect candidate to make the federal courts a central issue in 2020. He helped defeat Robert Bork’s Supreme Court nomination in 1986; the seat eventually went to Anthony Kennedy. But that record can’t be invoked without calling to mind the committee’s insensitive treatment of Anita Hill during the Clarence Thomas confirmation hearings in 1991. Though Biden led the hearings, he refused to take any blame. “I’m sorry for the way she got treated,” he said on ABC’s The View last week. “If you go back to what I said, and didn’t say, I don’t think I treated her badly.”
Biden does have genuine policy accomplishments, such as the Violence Against Women Act. He also has perhaps the most relevant experience of any Democratic candidate, after serving eight years as Barack Obama’s heir apparent. (Obama, playing the role of party unifier, is abstaining for now from endorsing anyone in the primaries.) So far, Biden’s campaign seems tailored to appeal to Democrats and any other voters who are nostalgic for an America before Donald Trump. Policy comes second.
Biden isn’t alone in having to reckon with his record. In their presidential campaigns, Hillary Clinton and John Kerry struggled to explain their own votes for the Iraq War and their stances on marriage equality. In this election cycle, Kamala Harris has faced criticism for her criminal-justice policies as a district attorney, California’s attorney general, and senator. Kirsten Gillibrand’s harsher immigration stances during the Obama years also seem out-of-step with the Democratic Party of the Trump era.
What separates Biden from those candidates is the breadth and depth of his errors. Tough-on-crime laws weren’t just part of his political career. In many ways, they were central to that career—his most substantive impact on American life. Backing away from them is no easy feat. It’s as if Warren were to call for the Consumer Financial Protection Bureau to be abolished, or if Al Gore renounced a carbon tax.
If Biden’s past positions on crime were his only problem, he might have an easier time explaining himself to the voters. But the asterisks throughout his record will be hard for the Democratic electorate to ignore as it considers him alongside nearly twenty opponents. If Biden had to qualify and distance himself from so much of what he’s done in his political career, what will he have to apologize for in the future?