In January 2000, when the Supreme Court assembled to hear oral arguments attacking a pivotal section of the Violence Against Women Act, Joseph Biden was front and center. VAWA legally protects women from domestic abuse and gender-based violence, and Biden has proclaimed it the "most important legislative accomplishment" of his Senate career. But, long before the law had reached a congressional vote, Chief Justice William Rehnquist had attacked the "Civil Rights for Women" section, with which Biden sought to define gender-motivated crimes as bias or hate crimes.
As Rehnquist prepared to open the morning's first argument, Biden did not sit somberly. Rather, the senator swiveled in his seat (conspicuous to most of us in the court's press section), smiling cheerily and talking with nearby allies, including numerous female attorneys who had helped him shape the bill. Although Biden had no official role, he sought to signal that--in what he described that day as a "titanic struggle"--neither he nor the women around him would go quietly in defeat.
These days, many women voters are more likely to perceive Biden as a spoiler than as a supporter. Since his selection last month as Barack Obama's running mate, Biden has been pitted against women, first taking the job that many Hillary Clinton supporters felt was her due, then facing off against another historic woman, Sarah Palin, who could become the first female vice president of the United States. With his 30-plus years in the Senate, Biden can sound like the member of a male-only club, an impression reinforced by old-boy gaffes--from joking that his wife's doctorate "is a problem" to referring to Palin as "good-looking."
But the irony of this assessment is that Biden has some of the best feminist bona fides around. The mostly untold story of Biden's fight to support the "Civil Rights For Women" section of VAWA provides a window into his work for women, its origins, and how the defense of women's rights fits into his political worldview. Women voters may yet find something to cheer: In fighting for the legislation, Biden showed he was willing to trust the guidance of women activists and women judges, and then to contend against fierce and mostly male resistance in Washington, particularly from the Supreme Court.
In the spring of 1990, a new staffer in the offices of the Senate Judiciary Committee received a surprise project from her boss. Joe Biden wanted her to figure out what Congress should do to reduce violent crimes against women. Victoria Nourse, the staffer, was then just six years out of law school and unaware of Biden's past efforts along similar lines. In 1981, as he recalls in his 2007 memoir, Promises to Keep, Biden had pushed for a provision opposing laws that treat rape within marriage as a lesser crime than other rapes. Biden's effort led to a rebuff by Senator Jeremiah Denton of Alabama, who replied, "Damn it, when you get married, you kind of expect you're going to get a little sex."
The late '80s, Biden noticed, showed a rise in violent crimes against young women. Then, in December 1989, a man walked into a university classroom in Montreal with a hunting rifle, divided the students by sex, yelled that the women were all "a bunch of feminists," and killed 14 of them. Biden's aide Ron Klain handed the Senator an article in the Los Angeles Times by a friend who had clerked with Klain the year before at the Supreme Court, Lisa Heinzerling (now professor of law at Georgetown). Heinzerling connected that murder of "feminists" to a gap in U.S. law. Federal law tracking hate crimes targeted only, she wrote, a "victim's race, ethnicity, religion, or sexual orientation." Thus, she argued, "if a woman is beaten, raped or killed because she is a woman, this is not considered a crime of hate"--a legal loophole "welcome to no one but the misogynist."
Biden posed a challenge to Nourse: figure out what Congress should do, and start by looking at the marital-rape issue he had tried to tackle a decade earlier. In the legal reading room of the Library of Congress, Nourse found a twist that shocked them both. Some states had extended the marital-rape exemption to become a date-rape exemption that downgraded a rape charge if a woman was a man's "voluntary social companion." One state that had done so was Delaware, where Joe and Jill Biden were raising a young daughter.
In 1972, Biden's first wife, Neilia, and infant daughter, Naomi, had died in a car crash, and, afterward, he had made a decision, despite his political career, to raise his children in their home state. From this point on, for Biden, a big part of politics became personal. Now he was learning that his daughter was legally more vulnerable to date rape in Wilmington than in, say, Washington or Arlington. When Nourse reported this to Biden, she saw a "look of horror on his face."
Looking for a solution, Nourse drafted a proposal for the "Civil Rights for Women" section of what would become VAWA. (The bill's other two parts, "Safe Streets for Women" and "Safe Homes for Women," proposed funding and legal support to assist law enforcement and protect women from domestic abuse.) The goals of the civil rights section were grand: make women "free from crimes of violence motivated by the victim's gender." But its method was more modest: give victims of such violence the right to sue their attackers in federal court. Nourse grounded the section constitutionally both in the equal-protection guarantee of the Fourteenth Amendment and in the Commerce clause (partly via language echoing the Civil Rights Act of 1964, itself upheld by the Court under the Commerce clause).
Even before Biden introduced VAWA at Senate hearings on June 20, 1990, Nourse began seeking allies among women's groups in New York and Washington, D. C. Both she and Biden recall that"inside the-beltway women's groups" did not leap to assist. In Promises to Keep, Biden quotes one group member replying, "Oh, Victoria, you're a nice little girl, but you work for Joseph Biden. Why should we believe you?" Such distrust, he thought, came because he was not "pure" in his support for abortion--opposing federal funding of abortion though supporting a woman's right to choose.
Fortunately for VAWA, Nourse found a significant ally in the association of attorneys called the NOW Legal Defense and Education Fund and particularly with a staff attorney named Sally Goldfarb (now a professor at Rutgers School of Law-Camden). Goldfarb set out to form a coalition to gather broad support for the bill.
Biden, in the meantime, held a second Senate hearing on violence against women in August 1990. As he listened to a recent graduate of the University of Pennsylvania (where his son Beau was still a senior) talk about efforts to help victims of acquaintance rape, Biden became energized. After hearing the woman say that some male students had harassed her with "nightly phone threats," Biden launched into what Goldfarb believed was an unplanned but revealing narrative. He told of trying to convince his wife Jill, who drove to night school for her graduate degree classes, to park in a place that was safer but illegal. In response, he said he got "almost a punch in the nose." Trying to work out why, he spoke of his wife's "frustration and anger" that she should need to take precautions no man would take. He linked her anger to her sense of "lost control."
Goldfarb felt she was hearing a man grasp a fundamental understanding about "the lack of control that is experienced not only by women who are themselves victims, but by all the women who have to constrain their daily activities to avoid becoming a victim." Biden was expressing, she thought, the "basic insight of the civil rights provision--that violence against women deprives women of equality."
Biden, too, portrayed himself as a man surprised by new knowledge. In Delaware, he found that victims of rape were beginning to "literally stop me in the street" to tell their stories and give thanks for VAWA. More than half, he said, spoke of a "need to regain control," which Biden evidently understood. The loss of safety, home, and control that he had felt himself when he lost his first wife and daughter was something that these women had also been forced to grapple with in the wake of their rapes.
For Biden and his staff, the great surprise came when VAWA--and particularly its civil rights section--came under fire, long before any congressional vote on the bill. In the summer of 1991, Chief Justice Rehnquist appointed a four-judge ad hoc committee to report on VAWA to an administrative body that he chaired, the Judicial Conference of the United States. The conference soon challenged the civil rights section on a variety of grounds, including the dubious projection that the federal caseload might double if even a tenth of domestic complaints became VAWA cases, causing "major state-federal jurisdictional problems and disruptions." Trying to stave off condemnation, Biden replied fiercely in a letter to the committee's chair: "I will not mince words: As author of the legislation, I have stated that ... the bill does not federalize divorce law or domestic relations cases any more than any other civil rights law does."
Undeterred, Rehnquist attacked VAWA in his 1991 "year-end report" opposing congressional additions of work to his courts unless "critical to meeting important national interests." In early 1992, he made clear to the American Bar Association (ABA) that he was pressuring Congress against vawa and added, "I urge your attention to this issue also." If Rehnquist could sway the ABA, Biden feared, congressional support for VAWA might evaporate.
At this point, the coalition of women Biden was working with realized that they needed to get judges on their side. Goldfarb and a colleague reached out to the one group, only about a dozen years old and far from radical, that might offer a counterbalance, the National Association of Women Judges (NAWJ). After spirited debate--one judge reportedly warned her colleagues that if they supported VAWA they would be seen as an adjunct for the National Organization for Women--the association's board voted to present a resolution supporting vawa's civil rights section to its full membership. A few months later, the ABA voted down an anti-VAWA resolution.
Soon, female judges working to save Biden's civil rights initiative began working to reshape it. They pushed Nourse and Goldfarb into accepting language that would assure detractors that VAWA's civil rights section would not overburden federal courts and would pass constitutional muster. The judges urged that the civil rights section apply only to crimes that were also "due, at least in part, to an animus based on the victim's gender." The key term "animus," or purpose, served to ground vawa more strongly in early civil rights law and the Fourteenth Amendment's promise of equality.
With that language in place, VAWA easily passed Congress in 1994. Contrary to fears mongered by the chief justice, the law did not cause cases to flood federal courts, perhaps partly because a woman's case had to meet the limiting language of "animus." The animus requirement helped defend VAWA against legal challenges also, and, by the end of 1999, the civil rights section had been upheld as constitutional in 17 of the 18 district courts that ruled on the question.
But, in 2000, one of these cases, Brzon-kala v. Virginia Polytechnic Institute and State University, finally reached the Supreme Court. Two male college students had allegedly raped a freshman named Christy Brzonkala within 30 minutes of her meeting them. When the first man finished raping her, he allegedly warned her that she "better not have any fucking diseases." A while later, in a university dining hall, he allegedly said that he "liked to get girls drunk and fuck the shit out of them." Strong "animus based on the victim's gender" seemed present, and Brzonkala brought suit under VAWA. Her assailants then challenged the law as unconstitutional.
During the years VAWA had begun its route to victories in lower courts, Rehnquist had extended what commentators have described as his "federalism revolution"--an effort to diminish the reach of the national government. The Court first undercut congressional authority to make law under the Commerce clause in a controversial 1995 case called Lopez that overturned a law passed by Congress to keep guns out of schools. Then the Court undercut congressional authority to make law under the Fourteenth Amendment in a 1997 decision about religion called City of Boerne v. Flores. By the time Biden faced off with Rehnquist at the Court, the civil rights section was in trouble.
On January 11, 2000, Biden stood without cheer in cold rain on the steps of the Supreme Court. He had just heard Justice Sandra Day O'Connor, whose vote he viewed as key to the survival of the civil rights section, suggest that the Court might have been "helped" if VAWA had contained a better "hook" to interstate commerce--an ominous and even ironic request, since the VAWA of 1994 was hooked solidly to the Commerce clause before 1995 when Lopez made the clause harder to hook to.
Standing beneath an umbrella that carried the seal of the Senate, Biden made an argument for women's equality that VAWA's defenders could not make inside the Court because the Court did not wish to hear arguments based on the Fourteenth Amendment. "Men don't choose not to take jobs" for fear of gender- motivated violence, Biden said, but "women do alter their life patterns." Then he returned to his own stake in the law--adopting a "personal is political" stance close to the heart of Biden's political values as well as much feminism. The effort to protect women against gender-based violence, he argued, "empowers my daughter and granddaughters."
The civil rights section's effort lost, however, by a vote of 5-4 in the Court after Rehnquist reportedly lobbied O'Connor for her vote. Although the rest of VAWA remained law, it had lost the part that Biden most valued--the part that strove explicitly for equality.
Joe Biden may have lost in a titanic struggle to expand the civil rights of women. But, along the way, he showed himself ready to follow the lead of female attorneys and judges. As Victoria Nourse told me in a recent e-mail from her desk at Emory Law School, where she is now a professor: "[I]n a day and age when Senators were still fondling interns in the Senate elevator, he not only protected me, he listened to me, my legal advice, and by extension, all the women who talked to me."
No one can pretend that getting Biden as vice president lifts women's spirits as high as they may go with the election of the first woman president. But no one will doubt that, on that wet day on the slippery Supreme Court steps, beneath his senatorial umbrella, Joe Biden was there--trying to stand tall for the rights of women.
Fred Strebeigh teaches nonfiction writing at Yale University. This article is adapted from Equal: Women Reshape American Law, forthcoming in February 2009.
By Fred Strebeigh