Joe Biden stepped into a huge pothole of his own making in last week’s debate when he bragged that he now takes “ideology” into account when deciding whether to confirm a judicial nominee.
Biden’s riff on judges was politically damaging for three reasons. First, because the public does not think judges should impose their own ideologies. Second, because the public particularly disagrees with the judicial ideology that Biden favors. Third, because Biden flat-out lied about why and when he took the position that ideology ought to matter.
Here’s exactly what Biden said in the debate (the ellipses do maintain the proper context): “When I got to the United States Senate and went on the Judiciary Committee as a young lawyer, I was of the view and had been trained in the view that the only thing that mattered was whether or not a nominee appointed, suggested by the president had a judicial temperament, had not committed a crime of moral turpitude. …
“It didn’t take me long, but it took about five years for me to realize that the ideology of that judge makes a big difference. … And that’s why I was the first chairman of the Judiciary Committee to forthrightly state that it matters what your judicial philosophy is.”
Biden came to the Senate in 1973. Five years after that would have been 1978. But Manny Miranda, president of the conservative Third Branch Conference, dug up quote after quote from Biden all the way to 2002 showing that he rejected ideology as an acceptable consideration.
As late as May 23, 2002, Biden said this in explaining why he would vote to approve circuit court nominee Brooks Smith: “If I had believed that the lower court nominee would abide by the precedents of the Supreme Court and their circuit, even though I knew I disagree with them philosophically, I would vote for them.”
It was not until the next year when Senate Democrats, including Biden, began almost uniformly following the lead of New York Sen. Chuck Schumer in openly applying an ideological litmus test to lower court nominees. It was a radical departure from the wise tradition of considering only the nominee’s qualifications, competence and temperament. It was used to justify obstruction of nominees, via unprecedented filibusters if need be, on a scale and with a viciousness never before seen in American history.
This particular derailment of tradition is largely responsible for the deterioration of the political “tone” in Washington that so many voters complain about. And the derailment came as a result of a purely partisan, political strategy by the entire Democratic caucus. That’s why the lie about the timing is important: It mis-portrays this use of political hardball as some sort of principled, personal decision or revelation that Biden made or experienced on his own.
What’s particularly odd about Biden volunteering the story of his epiphany on this issue is that when ideology is taken into account, the public clearly opposes the philosophies of the liberal judges Biden prefers. Biden’s favored judges tend overwhelmingly toward overabundant sympathy for the rights of accused criminals, toward support for racial preferences in hiring and school admissions, toward extreme pro-abortion decisions (example: finding a constitutional “right” even for partial birth abortions and against parental notification), and against property rights versus government regulators and urban planners. Suffice it to say that none of these positions is popular.
Dig deeper, though, and Biden’s position is more unpopular still. While Americans tend to prefer results reached by conservative judges of the very sort Biden has helped block, the public is even more consistently clear that it prefers that judges not allow ideology to enter their deliberations at all.
Just last month, a Rasmussen poll reported that 60 percent of the public “says the Supreme Court should make decisions based on what is written in the Constitution, while 30 percent say rulings should be guided on the judge’s sense of fairness and justice.” That result, of course, runs directly counter to Biden’s debate position.
The public is right on this issue. Except in utterly unusual circumstances, the ideology of a nominee should play no role in Senate deliberations. John McCain will be missing an opportunity, therefore, if he doesn’t campaign against the Biden-Obama embrace of ideological intrusion into the judiciary.
Quin Hillyer is associate editorial page editor of The Washington Examiner. He can be reached at [email protected].
