Speaking last Thursday at the Republican National Convention, Sen. John McCain (R-Ariz.) received a roar of approval after declaring his support for "judges who dispense justice impartially and don't legislate from the bench." Similarly, at the recent Saddleback Forum hosted by bestselling self-help author Rick Warren, McCain cited "the criteria of a proven record of strictly adhering to the Constitution of the United States and not legislating from the bench" as his standard for selecting a potential Supreme Court justice. His official website goes even further, stating: "John McCain believes that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives."
Given the strength of such rhetoric, which seems clearly designed to shore up support among conservatives, it's notable that McCain hasn't made more noise about Sen. Barack Obama's (D-Ill.) choice of running mates. After all, as chairman of the Senate Judiciary Committee from 1987 to 1995, Sen. Joe Biden (D-Del.) played a central role in perhaps the two most controversial events in modern judicial history: the Supreme Court confirmation hearings of Judges Robert Bork and Clarence Thomas.
Bork, a federal appeals court judge and former solicitor general in the Nixon administration, was nominated by President Ronald Reagan in 1987 to fill the vacancy created by retiring Justice Lewis Powell. As Bork sees it, he faced unprecedented opposition from desperate left-wing groups aided and abetted by the Judiciary Committee's leading liberals, Sen. Biden and Sen. Ted Kennedy (D-Mass.). In his book The Tempting of America (1990), Bork describes the Biden Report, a legal brief prepared for Biden that critiqued Bork's views on issues ranging from abortion to executive power, as having "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility."
Four years later, Biden was in the thick of it once more, overseeing the confirmation of Clarence Thomas to replace Justice Thurgood Marshall. Though today the Thomas hearings are remembered almost exclusively for the sexual harassment charges leveled by Anita Hill, Biden actually kicked it off by trying to discredit Thomas as a wild-eyed libertarian. Among other things, Biden waived around a copy of Richard Epstein's landmark book, Takings (1985), which argues that under the Fifth Amendment the government must pay just compensation to property holders affected by certain regulations, demanding to know if Thomas agreed with the book's content. As Epstein later told reason, "I took some pride in the fact that Joe Biden held a copy of Takings…and said that anyone who believes what's in this book is certifiably unqualified to sit in on the Supreme Court. That's a compliment of sorts."
Clarence Thomas is a bit less charitable. In his recent memoir My Grandfather's Son (2007), he alleges that Biden was intentionally dishonest throughout their dealings, claiming that the senator told him, "since I'd be nervous at first, he would start the questioning with a few 'softballs' that would help me relax and do my best." Instead, as Thomas recounts it, Biden "threw a beanball straight at my head…[and] wrenched my words out of context."
All of which makes you wonder why the McCain camp is holding back on the Democratic VP nominee. If the judiciary is so important to conservatives, why not bring up Biden's roles in keeping Bork off the Court and in nearly derailing Thomas? Perhaps the best explanation is McCain's own record. Unlike Biden, who's been a fierce partisan on the courts for two decades, McCain is a very recent convert to the cause of conservative jurisprudence.
Audience members at the Saddleback Forum, for example, might have been surprised to learn that McCain voted to confirm Justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter, despite the fact that he made a point of describing each of them as the wrong sort of justice for the Court (he held up Chief Justice John Roberts and Justice Samuel Alito as his models).
Moreover, McCain was a key player in the so-called Gang of 14, the seven Republican and seven Democratic senators who joined forces in 2005 to end the Democratic filibuster of conservative judicial nominees and to forestall the Republican "nuclear option" of banning such filibusters outright. In the eyes of many conservatives, this compromise crippled the GOP's efforts and effectively killed several of the nominations. Focus on the Family leader James Dobson, for instance, cited the Gang of 14 as one of the reasons why he "will not vote for Sen. John McCain as a matter of conscience."
Which leaves McCain in the lurch. On the one hand, he needs to deliver red meat rhetoric about the courts, something that Biden's actions seem tailor-made to fit. But on the other hand, spelling out his opponent's misdeeds threatens to remind conservatives of his own. For a self-styled straight talker, it's got to be an uncomfortable spot.
Damon W. Root is an associate editor of reason.