Strengthening Constitutional Self-Government

No Left Turns

O Ba Ma and Blah, Blah, Blah

So, the Democratic vice presidential nominee will be Joseph Biden of Delaware, a man whose satisfaction with the sound of his own voice is limitless and legendary. To stand out from 99 other United States Senators in that regard is, in its way, heroic.

It’s a bad thing in life, and especially in politics, to be known as the guy who always has to prove that he’s the smartest one in the room. Al Gore and Newt Gingrich each had this problem. It’s a worse thing, however, to be that guy when you’re never the smartest one in the room.

In August 1993 The New Republic helpfully printed, on an entire page, the transcription of a single question that Sen. Biden posed to Ruth Bader Ginsburg during her Supreme Court confirmation hearings before the Senate Judiciary Committee. It’s five times as long as the Gettysburg Address. Read it, if you are stout-hearted, and judge for yourself the quality of Sen. Biden’s mind and his contribution to our experiment in self-government.

SENATOR BIDEN: . . . [If] I had to be on an island with a man for any extended period of time, I might pick Judge [Antonin] Scalia. And the reason I would, sincerely, is I think he’s brilliant, I think he’s dead wrong most of the time, as he thinks I am, and it would be, as another nominee who came before us once said when asked why he wanted to be on the court, he said it would be an intellectual feast.

I now – a slight digression – I had a conversation with Justice Scalia after he had been nominated to tell him that I was about to say in an interview the vote I most regretted casting out of all the ones I ever cast was voting for him because he was so effective. He said, "What are you doing now?" And I thought he was asking me about something – I said, "I’m teaching a course in constitutional law at Widener University." He said, "Oh, my God. I better come and tell them the truth." So I’m sure he would have an opportunity to educate me if we were on an island together.

But having said that, Justice Scalia, on a very serious note, has offered one method – one method of – a methodology to determine whether or not a right of privacy, a personal right that is not enumerated, not mentioned in the Constitution, warrants constitutional protection. And he has written that the only interests protected by the liberty clause of the Fourteenth Amendment are those interests which are defined in the most narrow and specific terms where historical safeguards from government interference [have] existed.

Now, as you know better than I do-again at the expense of offending my brethren in the press, I’m going to be very fundamental about this, to use a phrase from another – in another context – when in the past we have determined whether or not fundamental rights of privacy exist, one of the things they go back and, courts have done, is go back and look at history. They say what have we done in the past as a people? What has our country done? What has our English jurisprudential system recognized, not only here in the states but in England in the common law? And they looked back at that as one of the guideposts – not the only one, not necessarily determinative, but that’s what they do – they have done.

And I think, by inference, Justice Scalia acknowledges that is an appropriate method, at least a starting point, to determine whether or not an unenumerated right should be recognized as protected by the Constitution. And so Justice Scalia says that when you go back to determining whether or not there is a – there’s an interest protected by the liberty clause of the Fourteenth Amendment – you go back and look at those interests defined in their most narrow and specific terms when you look back at history.

So the question for Justice Scalia in deciding whether the Constitution protects a particular liberty, including a particular privacy interest, is whether years and years ago the government recognized that precise, specific interest. Now, that approach of Justice Scalia, which was outlined by him in the Michael H. case, that approach is very different from another, and I would characterize as the traditional approach for determining whether or not these unenumerated rights that we have recognized exist, an approach which – the traditional approach, in my view, looks to whether the Constitution expresses a commitment to a more general interest and then asks how that commitment should be applied in our time [to] a specific situation.

The difference between these two approaches can make all the difference in the world where a justice comes out on the finding of whether such a right exists or doesn’t.

For example, under Justice Scalia’s approach, the right to marry someone of a different race is not protected by the Constitution – at least arguably, based on things he has said, because the right to marry is nowhere specifically mentioned in the Constitution. And when you go back to look at whether or not – which is one of the methods used by all justices to determine whether or not there is an unenumerated right that should be protected – when you go back in history and look, there’s no place you can say that under our English jurisprudential system, our courts or the English courts, have traditionally recognized the specific right of blacks and whites to marry. And since you can’t find that back there, then the right doesn’t exist.

Whereas, in footnote 6, for example, as you well know, although Justices Kennedy and Souter – I mean Kennedy and O’Connor – agreed with the overall finding on that case, which I won’t bother you with the facts, which you know well and are not particularly relevant to my point – they said we dissent from the methodology used by Justice Scalia in arriving at a decision which is the right decision – my words – but for the wrong reason. And they said you go back and you look at the general proposition of whether or not the general interest seeking protection under the Constitution is in fact one we’ve historically protected. So they say when you go back, you should look at have we historically protected the right and recognized the right of individuals to marry who they want to marry? So you go back and, depending on what question you ask, you get a different answer.

And if you go back and say okay, we’ll recognize – and I’m oversimplifying – if we recognize we’re going to recognize – determine whether or not anti-miscegenation laws are constitutional, and the basis on which they’re being challenged is I have a privacy right to marry who I want to marry, so let’s see if that right is protected by the Constitution.

Scalia’s approach, you go back, you look at all the history and you say, hey, there’s no place where blacks and whites were protected – because that’s the issue – are blacks and whites – can they marry? But if you use the O’Connor approach you go back and say have we recognized the right to marry? And they say yeah, we’ve done that; ergo we can say, using that methodology of looking at the general proposition, there may be a rationale to acknowledge--a principled rationale to acknowledge or recognize the right to marry a black man or a white woman or a white woman – or I mean a black white man or black woman. That may fall within the domain of my right of privacy guaranteed by the Constitution.

[At this point, Senator Biden was asked a question by Senator Orrin Hatch of Utah. After a ninety-nine word response, the Delaware senator picked up where he left off.]

Now, in contrast, as I said, under the more traditional approach of recognizing unenumerated rights, the courts asked not whether the legal system historically had protected interracial marriages but whether the legal system historically had protected the institution of marriage generally.

Because it had, because our legal system long had understood the importance of family integrity and independence, the court held in Loving v. Virginia that the particular right to marry someone of another race is also protected.

Now, in thinking about how the Constitution protects unenumerated rights, including rights of privacy, will you use – I’m not asking you where you’re going to come out on any issue, but will you use the methodology that looks to – going back to a specific right being sought guaranteed, or will you use the more traditional method of more broadly looking at the right that is attempting – seeking constitutional protection before the court? What methodology will you use? What role will history and tradition play for you in determining whether or not a right exists that is not enumerated?

JUDGE GINSBURG: Mr. Chairman, if I understand your question correctly. . . you are asking whether I would have subscribed to both parts of Loving, that is, both the equal protection and the due process -

SENATOR BIDEN: No. Let me be very clear . . .

Discussions - 7 Comments

(Snrfghifftwsh.) That was the sound of me snorting my morning coffee out my nose. I'd forgotten this great moment in Biden's history. Boy is this trip down memory lane going to be a laugh riot.

You can't make hay with the American people by pointing out that Biden is, as you guys term it, "a gasbag."

And that's because just about all Americans deem their politicos empty "gasbags." It's not even new. Even as far back as the Revolutionary period, soldiers in the Continental Army described the doings of the Continental Congress as "legislative windbaggery!"

So the American people are used to guys rattling and prattling on about anything and everything. They even grew perversely fond of that in Clinton. Americans see verbosity as a given in politics, a sine qua non for Washington.

We would be told that Senator Biden was just being thoughtful. Your implications that he bloviates just prove a lack of appreciation for traditional American statesmanship.

But, yes, this is going to be fun. Can you imagine him in the TV debate format? He'll just be warming to the topic when time is up.

It's not going to be Biden's gaffes that do in the Dem ticket, ------------ but those of the communicative genius, Obama himself. I don't anticipate Biden blundering through the campaign, as apparently many another Conservative does. I look to see him VERY EFFECTIVE on the campaign trail, ------------------ UNLIKE the guy the Dems foolishly placed at the top of their ticket.

If Biden was their standard bearer, he'd probably be up 15 by now.

But, yes, this is going to be fun. Can you imagine him in the TV debate format? He'll just be warming to the topic when time is up.

Yes. What a victory for American culture.

Matt, of course it would be an indictment of American culture, of TV culture, and one which I am happy to make. That's one of my favorite themes. However, what Biden does in the quote above IS a rhetorical blur. Even in a real debate his audience would be grasping for the clear point in vain.

Poor Mrs. Ginsburg! When the ordeal in those hearings even comes at the hands your friends...!

Among Obama's possibles, I actually rather like Joe Biden as his choice. He has baggage, and flaws like this one, but given the field of possibles, he was a good choice. He's not always like this.

Just found this blog via link off Voloch.

Had forgotten the delightfully revealing performance of Senator and now Obama�s VP candidate Biden at the hearing on confirmation of Ginsburg following her appointment by liberal Democratic President quoted here.

Supreme Court and other judicial appointments are a major concern of mine, as a retired lawyer, and thus a major consideration in choice of a Presidential candidate.
Gore was right that next president may appoint as many as three justices. It�s the Left that has said that �The Supreme Court is on the ballot� this year. Ironically, everybody who knew a Supreme Court Justice from a Senator or a soft taco knew when Reagan ran that he would appoint Bork, i.e., that, as the left said, �A vote for Reagan is a vote for Bork,� yet, when Reagan won the election, the left mounted the most vicious attack in history to defeat Bork�s confirmation, starting the destructive confirmation battles since.

The average student at Princeton and other Ivy League colleges, polled recently, could not name three (3) of the current nine (9) Justices of the Supreme Court of the United States. How many do you think could name three Vice Presidents? I doubt that one in ten voters could name three (3) sitting Justices, much less explain the difference between the �originalist� and the so-called �living constitution� theories of Constitutional interpretation and identify three sitting (3) Justices associated with each, and would bet that only a handful could pass even a multiple-guess test identifying any of the Framers of the Constitution or Bill of Rights, or any three (3) significant members of the Founders� generation, who did not clearly support �original intent� and reject what has become known today as the �living constitution� theory, because even the liberals among those key groups, including Jefferson warned against such an amorphous construction. Another thing even most college-educated voters do not realize is that most Supreme Court case turn not on Constitutional issues but on construction of statutes enacted by Congress which it had the power and duty to phrase in such a way as to avoid the dispute, and has the power to amend to change a result it does not like for future cases.

Consider the recent case of Louisiana v. Kennedy, in which, in a classic contrast between the two approaches to Constitutional interpretation, the five (5) Justice majority [including Stevens who had already announced that he thought the death penalty, mentioned in the Constitution, was nevertheless unconstitutional in all cases, cited as primary authority their own personal views and choices and held that the Eighth and Fourteenth Amendments barred the death penalty for the aggravated rape of a child regardless of the facts of the case, including multiple such offenses, while the four (4) conservative Justices would have upheld the right of the people of a State, guaranteed a �republican form of government� by the Ninth Amendment, to provide for the death penalty for rape of a child. Here�s where that becomes interesting in the context of the Presidential race. Both Obama, a former Editor of the Harvard Law Review [whose only writing there was a classic argument for an absolute right to abortion] and a Professor of Constitutional Law, and McCain, not a lawyer, announced, though only afterward, that they disagreed with the majority opinion. Obama has said he likes four of the five liberal Justices who joined the majority opinion with which he said he disagreed, and he had voted against confirming Alito, who wrote, and Chief Justice Roberts, who joined the other conservatives in, the dissenting opinion, with the result of which he said he agreed. So did leading Harvard Law professor and Supreme Court advocate Lawrence Tribe in a post-ruling op-ed piece in the Wall Street Journal. McCain has pledged to appoint more justices like the conservatives who agreed with Obama and him that the law was Constitutional. None have ever filed an amicus curiae brief with the Court urging reconsideration of the decision, even after it came out that no one had told the Court, and it had been unaware of, a relevant recent federal law providing for the death penalty in such cases if committed on federal property. That raises a real question about Obama�s credibility and concern for me, but I have represented a number of survivors of child rape, mostly incest, including members of the families, and some of whom were victims, of politicians of both parties, in my law practice.

Although the guilt or innocence of the defendant, convicted by a jury after a trial, the sufficiency of the evidence to prove his guilt beyond reasonable doubt, the fairness of the trial, were not challenged, and neither those, nor certainly and especially the wisdom of the law, were not before the Supreme Court, the five (5) liberal Justices who voted to bar the death penalty in that or any other such case of aggravated rape of a child not ending in murder devoted much of their opinion to the wisdom or lack of wisdom of the law. They also went off on another tangent in which they attacked the credibility of child witnesses generally, and child sexual assault victims in particular, utterly irrelevant to any issue before the court, which will haunt every child sexual abuse case from now on. In the process, they cited a noted expert on child sexual abuse cases for one point while choosing to overlook or omit his highly relevant and significant data and opinions dealing with the child not originally having identified the family member perpetrator, including his data on how common this kind of false or inconsistent statement by a terrified and abused child, often threatened with death if she identifies him, is in cases in which the guilt of the accused is clearly established anyway. I�ve seen that up close and personal in my own practice and life. Under this theory, you can convict someone without the testimony of the child if she is murdered, but not if she has �only� been raped. The majority further said that, while the aggravated rape and permanent physical and emotional disability of a child is not sufficiently serious to justify the death penalty, a �crime against the government� might be held to be.

None of FDR�s wartime Vice Presidents, including Harry Truman, had any real foreign relations experience, and Truman had not even been told about the atom bomb project, until he was suddenly thrust into the Presidency in the middle of World War II. Clinton had none when he was elected President. Now who would you rather have answer that call on the red crisis phone at 3:00 A.M., as between McCain and Obama, much less as between Palin and Biden?

Of course, Justices have been shocking and appalling the Presidents who appointed and the Senators who voted to confirm them for two centuries.

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