Will Joe Biden play politics when it comes to Supreme Court choices?

Will Joe Biden play politics when it comes to Supreme Court choices?
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The president of the United States has the authority to fashion the federal judiciary and notably the Supreme Court. The Constitution empowers the president to nominate and, with the advice and consent of the Senate, to appoint federal officials, including Supreme Court justices. The Senate to date has confirmed more than 200 federal judges appointed by President Trump, including two associate justices of the Supreme Court. Joe BidenJoe BidenBiden leads Trump by 36 points nationally among Latinos: poll GOP set to release controversial Biden report Can Donald Trump maintain new momentum until this November? MORE, the Democratic candidate this year, holds a record of playing politics with the Supreme Court appointment process. The most famous illustration of this unfortunate fact involves Robert Bork and Clarence Thomas.

Robert Bork was a professor for Yale Law School, a solicitor general of the United States, a judge on the Court of Appeals for the District of Columbia Circuit, and the leading conservative legal theorist in the nation. President Reagan nominated Bork to the Supreme Court in 1987, but the Senate had rejected his nomination. Biden chaired the Senate Judiciary Committee at the time and played a pivotal role in the defeat of his nomination.

Among the concerns of Biden was the refusal of Bork to acknowledge that natural law, which is the notion that positive law should reflect the “higher law” which realizes human freedom, must be consulted when interpreting the Constitution. Indeed, Biden told Bork during the hearing, “As a child of God, I believe that my rights are not derived in the Constitution. My rights are because I exist. They were given to me and each of my fellow citizens by our creator, and they represent the essence of human dignity.”

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Then a mere four years later, Biden, in his continuing capacity as chairman of the Senate Judiciary Committee, would then chastise Clarence Thomas for supporting this role for natural law when interpreting the Constitution. In perhaps one of the most inelegant retorts ever uttered with a Supreme Court confirmation hearing, Biden blatantly claimed to Thomas, “I do not know why you are so afraid to deal with this natural law thing.”

But Thomas was not afraid to deal with it. Biden simply did not understand his remarks. As Thomas said in response to one key question from Senator Howard Metzenbaum, “The point I think in these speeches is a notion that we should be careful about the relationship between the government and the individual, and we must be careful that the government itself does not at some point displace or infringe on the rights of the individual, and that is a concern, as I have noted here, that runs in my speeches.”

While only the most avid followers of Supreme Court appointments might recall that, many of those critical participants in the confirmation process of Thomas, including Biden, who went so far as to publish a column in the Washington Post with profound misgivings over the remarks and writings of Thomas, took the completely opposite position with natural law during the confirmation process of Bork. This seems like principle has little to do with nomination hearing questions over political philosophy.

Biden is evidently a very nice person. Further, he has a lot of experience in government, most notably, over three decades as senator and eight years as vice president of the United States. But the Supreme Court is critical to the system of checks and balances of the Constitution, and voters should be wary of the candidate who has been playing politics with the Supreme Court nomination process for this much time in public office.

Scott Douglas Gerber is a law professor for Ohio Northern University and associate scholar for the Political Theory Project at Brown University. His books include “First Principles: The Jurisprudence of Clarence Thomas.”