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Constitutional Biden

Civil liberties' greatest salesman.

The Obama-Biden slate is historic in many ways, but for law professors it has a special cachet: It's the first time that professors of constitutional law have occupied both slots on a ticket. Barack Obama was a senior lecturer at the University of Chicago Law School, and Joe Biden has been an adjunct professor at Widener University School of Law since 1991. More to the point, it's the most civil-libertarian ticket ever fielded by a major U.S. political party.

Moments after the September 11 attacks, as Biden watched his colleagues evacuate the Capitol, a reporter asked him whether America would have to revisit the way it protects our public institutions. "I hope that's not true," Biden replied, according to his autobiography. "[If] we have to alter our civil liberties, change the way we function, then we have truly lost the war."

It was a telling response, given the situation unfolding around him--and a perfect reflection of his career. As chairman of the Senate Judiciary Committee, and the veteran of some of the most bruising Supreme Court confirmation battles, Biden did more than champion civil liberties. He developed an uncanny knack for making them politically palatable to Middle America. In fact, during the Robert Bork and Clarence Thomas hearings, he shepherded a new and expansive conception of privacy into public discourse. This gift for marketing civil liberties won't just serve Obama well as he rebuts Republican attacks during the campaign; if the ticket prevails, Biden's instincts will help guide the selection of judges and the challenging task of reconstructing civil liberties after the assault of the last eight years.

In his autobiography, Promises to Keep, Biden argues that he derived his approach to government from his working-class, Catholic upbringing in the 1950s. His father, who managed a car dealership, lectured him at the dinner table about the horrors of the Holocaust and once quit a job when he saw the boss, at an office Christmas party, throw silver dollars on the floor to watch his employees scramble. "The one thing my mother could not stand was meanness," Biden writes. "She once shipped my brother off with instructions to bloody the nose of a kid who was picking on smaller kids. ... Religious figures and authority figures got no exemption. They abuse their power, you bloody their nose." (In an autobiographical video, Obama told the Democratic Convention that his mother taught him a similar lesson.)

This visceral distaste for abuses of power has undergirded his passionate defense of the right to privacy. Call it the blue-collar view of civil liberties: You defend the little guy against the bullying intrusions of government.

During Robert Bork's Supreme Court confirmation hearings in 1987, Biden's distinctive view of civil liberties set him on a collision course with liberal interest groups. (I worked for Biden as an intern on the Judiciary Committee during the Bork fight.) Biden always had an ambivalent relationship with these groups because of his deviations from liberal orthodoxy: He had attacked busing as a "liberal train wreck" and earned the distrust of women's groups with his middle-of-the-road position on choice, voting to ban so-called "partial-birth" abortions even as he opposed constitutional amendments to ban abortion.

A broad swath of the left wanted to use the Bork hearings as the stage for an apocalyptic showdown over abortion. "We're going to wage an all-out frontal assault like you've never seen before on this nominee," promised Kate Michelman of the National Abortion Rights Action League. In an early meeting over Bork, Biden told the groups, "If I lead this fight, it will not be a single-issue campaign." (This pledge was promptly leaked to newspapers, infuriating the senator and increasing his mistrust of the groups.)

Biden made it clear that he was less interested in abortion than in the right of privacy, recognized in Griswold v. Connecticut, which protected a married couple's right to use contraception and reaffirmed the right to resist mandatory sterilization. "Look, I don't think Roe is great constitutional law; but, if this administration is trying to put someone on the Court just to reverse that decision, they're going to tear this country apart," Biden told his academic advisers, as Mark Gitenstein, Biden's chief counsel at the time, writes in his account of the Bork hearings. "But, to tell you the truth, what concerns me more is what you fellas are saying about his view on the right to privacy. It really concerns me more than abortion."

Although, as late as 1968, Bork had defended Griswold v. Connecticut on libertarian grounds, Bork had reversed himself by 1971, when he attacked all the "sexual-freedom cases" as an example of what he called the Supreme Court's imposition of "upper-middle-class, college-education, East-West Coast morality." Biden's great insight was that Bork misjudged the attitudes of middle-class Americans toward sexual freedom. In a crucial moment in late August 1987, he recalled talking about Bork's criticism of Griswold with a friend and longtime staffer, according to his autobiography. "Could you imagine what would happen," Biden said, "if I went down to Gerardo's restaurant [in Wilmington] and told a group of married couples there after a softball game that I was taking away their right to use birth control?" Biden concluded, "We should make this about privacy," not abortion. To test his instincts, Biden convinced Philip Kurland, a conservative constitutional scholar from the University of Chicago, to accompany him to a shopping mall in Delaware, where Biden walked up to people he knew and asked them if they thought married couples had a right to use contraception."Of course," they said, looking at him as if he were crazy. When he asked why, all of them said, "The Constitution."

Polls conducted by advisers to Biden's presidential campaign, including Patrick Caddell, confirmed Biden's instincts. Biden and Caddell viewed the Bork fight as a state-by-state battle and were most interested in swing states like Alabama and Pennsylvania, where moderate Republicans and Southern Democrats might be persuaded to oppose Bork. Caddell found that 75 percent of white Southerners were less inclined to support Bork after they learned he had opposed the right to contraception. And unlike abortion, which divided pro-choice women's groups from civil rights groups--whose African American supporters were more socially conservative--privacy proved to be a political winner.

During the Bork hearings, Biden skillfully defended the right to privacy in terms that middle-class Americans understood, even if his constitutional arguments were questionable. "I believe all Americans are born with certain inalienable rights," Biden declared in his opening statement. "As a child of God, I believe my rights are not derived from the Constitution. ... They were given to me and each of my fellow citizens by our creator, and they represent the essence of human dignity." Evaluating Biden's performance, R.W. Apple of The New York Times concluded that "for the lay audience ... Mr. Biden's sweeping invocations of human rights antedating the Constitution were far easier to grasp than Judge Bork's insistent examinations of the purported legal derivations of such rights."

With Biden forcing Bork to confront his unpopular views, the nominee ultimately recanted his criticisms of many controversial Warren Court decisions, disappointing his supporters and unsettling skeptics. Having been, at various points in his career, a socialist, a communist, a libertarian, an originalist, and a Burkean, as Gitenstein writes, Bork gave the impression that he was an inconsistent ideologue who tried on positions like hats. National opposition to Bork doubled after his testimony, with especially dramatic movement among undecided women and Southerners--just as Caddell and Biden had predicted. "The brilliance of the Bork strategy is that it wasn't directed at the elites, it was directed at those people who go for pizza at Gerardo's," Gitenstein told me. "The Republicans thought it was about the Warren Court and exotic rights. But it wasn't about that; it was about regular folks."

During the battle over Clarence Thomas, Biden was similarly determined to focus on the nominee's judicial philosophy and to resist the effort to troll for personal indiscretions. When liberal groups tried to circulate Anita Hill's sexual harassment allegations, Biden insisted that the charges be handled confidentially by the Senate Judiciary Committee. After the allegations leaked, and public demand for her testimony became overwhelming, Biden refused to call at least three witnesses who were ready to corroborate Thomas's interest in pornography, according to Jane Mayer and Jill Abramson's Strange Justice. After the Thomas hearings, Biden told an interviewer that he could have "decimated" Thomas by bringing in "the pornography stuff," but "it would have been wrong."

Women's groups remain angry at Biden to this day. If the supporting witnesses had testified, they believe, he would have been defeated. But this is wishful thinking. "In the end, the feminists who cheered Hill on made a terrible miscalculation," Gitenstein writes. "According to polling by The New York Times, most women sided with Thomas, not Hill."

Biden calculated that he couldn't defeat Thomas by violating his privacy, and that Democrats could have won more votes by fighting him on the merits. "The groups never understood the strategy we used on Bork: to break off the moderate Republicans and hold the Southern Democrats by focusing on privacy," Gitenstein says. In other words, Biden understood that he couldn't continue to build a case based on Thomas's threat to privacy if the Democrats' own conduct showed how little they valued Thomas's privacy.

How would Biden's blue-collar defense of privacy influence the kinds of Supreme Court nominees he might encourage Obama to appoint? As it happens, Obama and Biden share a belief that the most effective justices have been practical politicians rather than ivory-tower academics. Obama has embraced Earl Warren, the former governor, as a model of the kind of justice he would appoint, noting that Warren understood that segregation had real effects on schoolchildren that went beyond its theoretical indignity. Biden's instincts are similar. "He is a strong advocate of people with practical experience," says Gitenstein. "He thinks there are enough academics up there rightnow and he likes the idea of practical people. I remember during one of the early Clinton nominations, Mario Cuomo was in play, and Biden would have thought Cuomo was a good choice."

There has never been a national political constituency for civil liberties, which means that the damage of the past eight years can't be reversed without committed leadership from the next White House. And, even with that commitment, restoring civil liberties will be difficult, in light of the Republican knack for tarring concern about government abuse as soft on terrorism. But, with Biden at his side, Obama has more than a like-minded defender of civil liberties; he has one of the nation's most effective spokesmen on their behalf.

Jeffrey Rosen is The New Republic's legal affairs editor.