Almost 30 years ago, Joe Biden led a fight that helped sew the seeds for Friday’s Supreme Court decision legalizing gay marriage.
As writer Bill Scher pointed out on Twitter, Biden’s successful campaign to scuttle one of President Ronald Reagan’s Supreme Court nominations helped get the ball rolling for Justice Anthony Kennedy — who wrote the majority opinion in Friday’s case — to be appointed to the Supreme Court.
In 1987, Ronald Reagan nominated fiercely conservative judge Robert Bork to the Supreme Court. The nomination sparked massive protests from Democrats in Congress, who believed that Bork’s conservative voting record and opposition to the Civil Rights Act and contraception and abortion issues would usher in a highly conservative era in the Court.
At the time, the then-Sen. Biden chaired the Senate Judiciary Committee, the body in the Senate in charge of leading Supreme Court confirmation hearings. After initially supporting Bork, Biden changed his mind.
“The framers clearly intended the Senate to serve as a check on the president and guarantee the independence of the judiciary,” Mr. Biden said in August 1987, according to the Wall Street Journal. “The Senate has an undisputed right to consider judicial philosophy.”
As then-Biden intern Jeffery Rosen notes, the future vice president refused to level ad-hominem attacks against Bork as other Democrats were doing. Instead, Biden used the Senate confirmation hearing to focus on Bork’s conservative opinions. Among other things, he cited Bork’s support of a law that made birth control illegal and his opinion that individuals don’t have a right to privacy.
The hearings themselves helped bring down Bork’s confirmation. As NPR notes, Bork did not come off as a curious, respected Yale law professor. His appearance was dour and his testimony was uninspiring — when questioned by a sympathetic Republican senator about why he wanted to join the Court, Bork replied that it would be “an intellectual feast.”
“He looked and talked like a man who would throw the book at you — and maybe the whole country,” Washington Post television critic Tom Shales said of Bork.
After Bork’s nomination was scuttled, President Ronald Reagan appointed the more moderate Kennedy. In introducing Kennedy, Reagan emphasised that he ”seems to be popular with many senators of varying political persuasions,” according to The New York Times.
Kennedy has become a key swing voter who often sides with the conservative justices, but has cast key votes in gay-rights cases. In 2013, Kennedy voted to overturn the Defence of Marriage Act. And on Friday, he cemented his gay-rights legacy by casting the deciding vote that legalised gay marriage nationwide.
Biden celebrated the Kennedy-led decision on Friday, saying the day would be one for “history to remember.”
“This day is for history to remember as one where, as a nation, our laws finally recognise that all people should be treated with respect and dignity — and that all marriages, at their root, are defined by unconditional love,” Biden said in a statement.
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