Vice President Joe Biden

  • June 30, 2015
    Guest Post

    by Sam Kleiner, a fellow at the Yale Law Information Society Project 

    With his landmark opinion in Obergefell v Hodges, Justice Anthony Kennedy cemented his legacy as a gay rights icon. “He will be remembered for these decisions perhaps more than any other,” said Camilla Taylor, counsel and director of Lambda Legal’s marriage project. What makes this all the more remarkable, is that Justice Kennedy wasn’t supposed to be a justice at all. He was Reagan’s more conciliatory choice, the one who was “popular with colleagues of all political persuasions,” after the failed nomination of the far more right-wing Robert Bork.

    The effort against Bork has been immortalized in Senator Edward Kennedy’s speech on “Robert Bork’s America.” "To Bork" has entered the American lexicon as a hyperbolic attack on a good person.

    The reality, however, is that Bork was outside the legal mainstream. Whereas Senator Kennedy led an effort to skewer Bork, the chairman of the Senate Judiciary Committee led a far more substantive critique of Bork’s extremism that proved pivotal in the fight over the nomination. That senator was Joseph Biden.

    Bork was nominated with impeccable credentials- a professor at Yale Law School and a Judge on the D.C. Circuit court of appeals. The Senate had traditionally questioned the qualifications of a nominee but an inquiry into their judicial philosophy had not been done in a full-throated manner. Bork, however, had built his academic career disparaging an array of civil rights cases and Biden thought it was necessary to dig in on what exactly this nominee’s views of the Constitution were and what he would do on the Court.

    While others wanted Biden to go after Bork’s personal life, he took the higher road. “When confronted with a request to subpoena Judge Bork’s video rental records in a search for possible pornography, Mr. Biden refused,” noted Jeff Rosen (then a Biden intern).

    Instead, Biden went into an in-depth hearing on Bork’s understanding of the Constitution. Biden, as Rosen noted, focused the “questioning on Judge Bork’s substantive views about the right to privacy." In 1965, the Court in Griswold had ruled that a law banning the use of contraceptives by a married couple was unconstitutional as a violation of the “right to marital privacy.” Professor Bork had built his career criticizing decisions like Griswold and Biden used the hearings as a way to highlight just how extreme Bork was.

    In the hearings, Biden, at some length, prodded Bork on his argument against Griswold. Bork gave “weak-kneed statements from a man known for verbal muscle,” as one historian notes.  Biden’s objective was not to disprove Bork’s views explicitly but he was able to discredit him in the court of public opinion. The strategy worked.

    The concern raised about Bork was that he had always been opposed to the development of new liberties and was unlikely to be a defender of liberty on the Court. “As one imagines the kinds of great new issues that might come before the court in the years ahead, there surely are reasons to fear that on these great issues, Judge Bork will not be there when it counts,” testified Bork’s Yale Law colleague Paul Gewirtz at a Biden-led hearing.

  • May 9, 2012

    by Jeremy Leaming

    Although it may make little difference in states bent on barring same-sex marriage, President Obama made a historic announcement today on marriage equality, becoming as TPM notes the “first sitting president to come out in support of legal same-sex marriage.”

    President Obama told ABC News, “At a certain point, I’ve just concluded that for me personally, it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.” (Picture is linked to video excerpt of the president’s interview.)

    The president’s comments come on the heels of the North Carolina vote in favor of a constitutional ban on marriage equality, and Vice President Joe Biden’s recent statement that he is “absolutely comfortable” with same-sex marriage.

    The president defended his record of advancing equality, noting, “I’ve always been adamant that gay and lesbian Americans should be treated fairly and equally. And that’s why in addition to everything we’ve done in this administration, rolling back ‘don’t ask, don’t tell,’ so that outstanding Americans can serve our country, whether it’s no longer defending the Defense Against Marriage Act, which tried to federalize what historically has been state law, I’ve stood on the broader side of equality for the LGBT community.”

    But Obama said he “hesitated on gay marriage in part because I thought that civil unions would be sufficient,” by giving gay couples the many rights that legally married couples enjoy. The president added that he was “sensitive to the fact that for a lot of people the word ‘marriage’ was something that invoked very powerful traditions, religious beliefs, and so forth.”

  • March 26, 2010

    A draft proposal of the Anti-Counterfeiting Trade Agreement (ACTA) has been leaked, and critics are sharpening their attacks on the controversial anti-pirating agreement.

    ACTA has long been a subject of criticism. Being negotiated behind closed doors, the multi-national agreement is intended to standardize intellectual property enforcement among participating countries. Critics argue, however, that the secret negotiations shaping ACTA should be made transparent. Leaked reports on the substance of negotiations have also drawn fire.

    Today's Washington Post bears an op-ed by Harvard Law professors Lawrence Lessig and Jack Goldsmith who reiterate prior criticisms of both the process producing ACTA and the agreement's substance. Their op-ed also introduces constitutional concerns for how the United States might join the agreement, noting that the administration has suggested enactment without congressional involvement.