The Book of Joe

by Jeff Wilser

  The Left mobilized. Ted Kennedy charged that “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors and make raids, and schoolchildren could not be taught about evolution. Writers and artists would be censored at the whim of government.” The executive director of the NAACP promised, “We will fight it all the way—until hell freezes over, and then we’ll skate across on the ice.”

  The Right, of course, thought this was hogwash, and charged that liberal “special interest groups” were putting politics ahead of country. (Any of this sound familiar?)

  The hearings would run through the Senate Judiciary Committee, which, in turn, would be chaired by Joseph R. Biden Jr. It didn’t look like a fair fight. Pundits such as George Will predicted that Bork would be “more than a match for Biden in a confirmation process that is going to be easy.”

  To compare the two men’s résumés:

  Why did this confirmation matter so much? For the nation, you could make a solid case that it was the most pivotal Supreme Court nomination of the past century. And for Joe Biden, this was his on-ramp to the presidency. His team was banking on it. “We thought the Bork nomination was going to be an incredibly positive experience,” remembers Ted Kaufman, Biden’s right-hand man for more than three decades. “Our basic game plan went like this: Break out in Iowa, do well in New Hampshire. The Bork nomination was going to be the opportunity for Americans to see Joe Biden for the first time, to really think about him as a president.” The New York Times even had a photo of Bork and Biden going jaw-to-jaw with the caption “The First Primary.”

  Enter the gaffes.

  In the weeks before tip-off, Biden promised Bork that he would get a fair hearing. Yet at the same time, reporters asked if he would vote against Bork, and he admitted that was the “overwhelming prospect.”

  Huh. People scratched their heads and wondered how both of these statements could be true. Critics pounced. One critic of Joe Biden was Joe Biden. He soon said that he had just made “the biggest mistake of my political career in coming out against Bork the way I did.”

  But then that mea culpa seemed to cause even more problems, as the Left interpreted it to mean “I made a mistake in opposing Bork.” So Biden then clarified his clarification, explaining that it was “more of a public-relations mistake than a substantive mistake.” As biographer Jules Witcover notes, “He seemed unable simply to shut up.”

  To Biden, though, the situation wasn’t complicated: Given what he knew of Bork’s record, he was highly, highly unlikely to vote for him, but he also kept an open mind, and he thought the man deserved a fair shake. This is a reasonable and logically coherent position, but it makes for a lousy sound bite. (A classic Biden conundrum.) By neither squarely denouncing Bork nor hiding his reservations, he found a way to tick off everyone.

  So Biden did his homework. He dug deep and read Bork’s opinions and papers—hundreds, thousands of pages—and surrounded himself with a team of constitutional all-stars, both liberal and conservative. His team assembled a massive compendium known as “The Book of Bork,” unwittingly foreshadowing this very book.

  One of these legal experts was Larry Tribe, a professor at Harvard, who has argued before the Supreme Court more times than Meryl Streep has been nominated for an Oscar. Tribe remembers these working sessions well. He says that Biden pursued the details “as though he were preparing to take a comprehensive oral exam for a PhD, or to teach a seminar to a group of smart and intensely interested students.”

  Biden took notes. He kept going deeper, asking Tribe to describe in detail the historical origins of key constitutional doctrines, the scholarly and judicial debates about competing modes of interpretation, the lines of precedent in the Supreme Court and lower courts, and the practical consequences of agreeing or disagreeing with various opinions. (In other words, Biden didn’t just get his opinion from Fox & Friends.)

  WISDOM OF JOE

  Seek the core principles.

  After all this analysis, Biden decided, Okay, we need to keep this guy off the Court. Yet he had to do it the right way. Biden wanted to defeat Bork on the merits, not through a takedown of his character. Despite pressure from the Left, he refused to frame Bork as a racist or a sexist. (He was even urged by some to subpoena Bork’s video rental records, hoping to uncover porn. Biden spiked the request—Never neg.)

  The logic? Biden believes that attacks on personality aren’t just shady, but that they also backfire. An assault on Bork’s character, sure, would toss some red meat to the Left, but it would lose the center. Biden’s approach might cost him some liberal street cred, but as Grandpop Finnegan would say, Let the chips fall where they may. He insisted that the Democrats “didn’t have the votes to stop Bork if they were going to play to the liberal base.”

  So what was it, exactly, that made Bork so toxic? As Biden saw it, Bork refused to acknowledge any rights that were not explicitly spelled out in the Constitution. As every schoolkid knows, the Constitution gives a shout-out to the freedoms of speech and religion. But privacy? Nowhere is the word mentioned. Whether a right to privacy can be inferred is one of the holy wars of constitutional scholarship, but the Court had generally upheld that right, specifically in Griswold v. Connecticut. (Stay with me here. Griswold v. Connecticut established that a married couple has the right to use birth control in the privacy of their own home, and, more important, established a fundamental “right to privacy.” A handy, if not technically perfect, way to remember this: On the way to Walley World, Clark and Ellen Griswold had plenty of sexual hijinks, and the two of them got frisky in the privacy of their hotel room. Griswold v. Connecticut safeguarded these rights.)

  As a strict originalist, Bork disagreed with the Court, which troubled Biden. A new interpretation of the right to privacy could overturn protections on abortion, voting rights, and even the right to use birth control in the privacy of your own home. However, Biden worried that this important debate could get lost in the legalese, so he wanted to frame it in simple terms that would translate to all Americans. What do people care about? What unites men and women, black and white, gay and straight, Yankees fan and Red Sox fan?

  Finally he had his answer.

  Sex.

  Meanwhile, the Biden campaign found its groove. “We were doing very well,” remembers Kaufman, Biden’s longtime No. 2, who reported, “There were surveys in Iowa that were showing that he was breaking out.”

  And Biden knew it. Felt it. He addressed the crowds with a growing confidence, a swagger. But to understand what turned the tide for Joe Biden in 1988, we need to look across the Atlantic. In the election for prime minister, Labour Party candidate Neil Kinnock ran against the heavily favored Margaret Thatcher. Like Biden, Kinnock could give a mean speech. He talked about his coal-mining ancestors, and asked, “Why am I the first Kinnock in a thousand generations to be able to get to university? Is it because all of our predecessors were thick? Did they lack talent? Those people who could sing and play and recite and write poetry, those people who could make wonderful, beautiful things with their hands?…Of course not. It was because there was no platform upon which they could stand.”

  Biden happened to catch the speech while flicking through TV. He liked it. He liked it a lot. He especially liked the bit about how there was no platform upon which they could stand, as it neatly summed up the key principles of the Democratic Party. And in a happy coincidence, Kinnock’s roots had echoes of Biden’s own family experience, as Biden had “ancestors from the coal-mining town of Scranton.”

  So he began quoting Kinnock in his own stump speeches. Each time, he was careful to clearly reference Kinnock. The crowds lapped it up.

  Then came the primary debates. On August 23, 1987, Biden took a flight to Des Moines for a showdown at the Iowa State Fair with Michael Dukakis, Jesse Jackson, Al Gore, and the rest of the Seven Dwarves. He needed to do well. But since he was so c
onsumed with Bork, he hadn’t spent any time on debate prep. When his plane landed in Des Moines, he copped to his advisors that he hadn’t even written a closing statement. He had nothing.

  “Why don’t you use the [Kinnock] stuff?” someone suggested.

  Good call. There was no time to scribble out a speech—he would have to wing it. So at the close of the debate, and drawing from memory, Biden just did his normal riff on Kinnock. But he rushed it. On the stump he had plenty of time to give the full Kinnock quote, and then pivot to how it applied to his life and the lives of all Americans. Yet in Iowa, as the seconds ticked by on the debate stage, he bulldozed through the passage.

  “Why is it that Joe Biden is the first in his family ever to go to university?…Is it because our fathers and mothers were not bright?…It’s not because they didn’t work as hard…they didn’t have a platform on which to stand.”

  Nailed it, he thought. The crowd was silent, enthralled, and even in tears. Biden left the stage feeling pretty good about things.

  Only one problem. An aide leaned in and said, “Pssst, you forgot to credit Kinnock.”

  Shit. In his hurry, he had failed to squeeze in the usual accreditation. Prior to this, he had never claimed it as his own, and it had never been a problem.

  In the parallel universe, on Earth 2, in the closing statement of that fateful debate, Joe Biden simply says, “Like Kinnock, I believe that…” He continues to gain momentum in the polls. He wins the Iowa primary—not a stretch. Propelled by Iowa, he rides the momentum to secure the Democratic nomination. (Fun fact: At one point Michael Dukakis led George H. W. Bush in the polls, but then he wilted down the stretch, thanks, in part, to that disastrous photo of him on a tank. Biden would have looked good on a tank. Biden would have looked great on a tank.) With his strong appeal to the middle class, Biden wins a nail-biter of an election and is sworn in to office on January 20, 1989. President Biden gives an inaugural address that lasts ninety-six minutes—the longest in history. It is praised by many, but critiqued by some for accidentally insulting ballet dancers, the city of Bismarck, and flutists.

  On Earth 1, however, Biden did not insert those two words, “Like Kinnock.” At first there was no fallout. A week went by. Then two. Then, nearly three weeks after the debate, the hammer fell. The New York Times unleashed a front-page headline: DEBATE FINALE: AN ECHO FROM ABROAD, which charged that Biden had “lifted Mr. Kinnock’s closing speech with phrases, gestures, and typical Welsh syntax intact for his own closing speech…without crediting Mr. Kinnock.” (Bonus trivia: The story was fed to the New York Times by a staffer of Michael Dukakis. More bonus trivia: The story was penned by an up-and-coming political reporter named Maureen Dowd.) Just one of the many damning parallels:

  KINNOCK: “Did they lack talent?…Those people who could sing and play and recite and write poetry?…Why didn’t they get it? Was it because they were weak? Those people who could work eight hours underground and then come up and play football?”

  BIDEN: “Those same people who read poetry and wrote poetry and taught me how to sing verse?…Is it because they didn’t work hard? My ancestors, who worked in the coal mines of Northeast Pennsylvania and would come up after twelve hours and play football for four hours?”

  Biden was soon accused of another bout of plagiarism, suggesting a troubling pattern. Earlier in the year, he had given an inspiring address that clearly lifted language from a 1967 Robert Kennedy speech. Then it got even worse. In another speech, Biden appeared to have cribbed some lines from Hubert Humphrey. In both cases, it seems clear that Biden didn’t personally know about the lifted language, as the speeches had been written by his speechwriters. But still. On news channels, TVs showed Kennedy’s speech and then Biden’s speech, back-to-back. It was devastating.

  Not only were the reports a headache, he started having actual headaches. Migraines. As Biden began popping ten Tylenols a day, William Safire called him “Plagiarizing Joe.” Others piled on. As a pundit told the New York Times, “This controversy plays into the case his opponents would like to make against him: that he is a person of style rather than substance.”

  Exasperated, he focused on the one thing that he could control: Bork.

  Finally, after weeks and even months of hype, on September 15, 1987, Biden swung the gavel to kick off the Bork proceedings.

  Gavel in hand, Biden addressed the bearded nominee. “Judge Bork, I guarantee you this little mallet is going to assure you every single right to make your views known, as long as it takes, on any grounds you wish to make them. That is a guarantee, so you do have rights in this room, and I assure you they will be protected.” (As the Washington Post quipped, “Biden did everything but rush over to Bork’s water glass with an ice-cold refill.”)

  In his opening statement, Biden quickly moved to frame the debate on his own terms: “We must also pass judgment on whether or not your particular philosophy is an appropriate one at this time in our history….As a matter of principle I continue to be deeply troubled by many of the things you have written…our differences are not personal.” He then rattled off the bits he was troubled by: a lack of protection of voting rights, privacy in child raising, privacy in birth control.

  He kept coming back to that core issue—privacy. Channeling the Founders, he continued: “I believe all Americans are born with certain inalienable rights. As a child of God, I believe my rights are not derived from the Constitution. My rights are not denied by any majority. 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.” This was Biden at his finest: clear, composed, even…concise.

  Your move, Bork.

  Bork then gave a careful reply that sounded very, very smart without really tipping his hand. (This has become standard procedure for Supreme Court nominees.) He said that “the judge must speak with the authority of the past and yet accommodate that past to the present.” (Who could argue with that?) “That does not mean that constitutional law is static. It will evolve as judges modify doctrine to meet new circumstances and new technologies.” Bork was on his game.

  Biden knew that if they lobbed abstract speeches back and forth, Bork would win. He needed to cut to the core of issues that people would care about. He thought of the Delaware voters who would care about the right to use birth control in the privacy of their own home—who cared about, well, sex.

  And now Biden was rewarded for his homework, as he calmly pulled out an old Bork statement. Biden read Bork’s words back to him: “the right of married couples to have sexual relations without fear of unwanted children is no more worthy of constitutional protection by the courts than the right of public utilities to be free of pollution control laws.” He looked up at the esteemed judge. “Am I mistaking your rationale here?”

  “With due respect, Mr. Chairman, I think you are.”

  It was on.

  The two men went back and forth, making for some riveting C-SPAN. Biden kept pushing Bork on the question of privacy. “As I hear you, you do not believe that there is a general right to privacy that is in the Constitution,” Biden challenged.

  “Not one derived in that fashion,” Bork replied. “There may be other arguments and I do not want to pass on those.” In other words, Bork thought it would be perfectly reasonable to protect a couple’s right to privacy, but he couldn’t locate that rationale in the Constitution.

  Biden wanted to know, Okay, so if the right is not guaranteed in the Constitution, then where do you find that protection? Bork didn’t have an answer.

  The first day soon ended. The underdog Biden had won the first round, or at least battled Bork to a draw. What Bork didn’t know—what no one could know—is that Biden had prepared so thoroughly, he’d even had a “mock hearing,” with Harvard’s Larry Tribe sitting in a fake witness chair, pretending to be Bork. “I didn’t grow a Bork beard,” he remembers now, “but I did nearly everything I could, short of that, to simulate what I predicted
Biden would be up against.” (Biden loved the role-play, telling Tribe that he’d been a “better Bork than Bork.”) Biden was taking a page from his own childhood playbook, when he’d figure out which passage the teacher would make him read aloud in class.

  WISDOM OF JOE

  Simulate the battle.

  Let’s take a quick time-out: This could go on for another seventeen pages—or another seventeen books—but the point is that instead of using trickery or vilifying his opponent, Biden engaged in a sober, nuanced debate of the law. An honest, principled clash of ideas and ideals. And despite Biden’s reputation as the Ray-Ban–wearing, fun-loving prankster, underneath this is a man of substance who has a command of the details.

  And yet…

  He’s also a man who can make mistakes.

  Back to the campaign.

  Maybe Biden could have wiggled his way out of the Kinnock scandal. Same for the Bobby Kennedy scandal. Same for Hubert Humphrey.

  But then another shoe dropped: Biden was accused of puffing up his academic record. A refresher: His class at Syracuse Law School had eighty-five students. Biden graduated in the bottom half, #76 to be exact. Without Neilia’s help, who knows if he would have even passed the finals. Yet when a reporter grilled him, Biden defended his marks and said that he’d “ended up in the top half of my class.” Oops. Clearly frustrated with the never-ending questions, Biden snapped at the reporter, “I think I probably have a much higher IQ than you do, I suspect.” Oh, Joe. The whole yucky exchange was caught on C-SPAN. He also claimed to be “the only one in my class to have an academic scholarship,” but in reality, the scholarship was half merit, half need. There were other slipups—each one had an innocent(ish) explanation, but each looked damning. And those migraines continued.

  Remember when Biden made that little citation blunder in law school? It came thundering back. The press pounced, spinning this as “Biden Cheated in Law School,” despite Joe’s insistence that he had only made a citation mistake—little more than a formatting glitch. And he had proof. Biden rummaged through his old files and found a smoking gun that could exonerate him, a letter from the dean that said: “Mr. Biden is a gentleman of high moral character. His records reflect nothing whatsoever of a derogatory nature, and there is nothing to indicate the slightest question about his integrity.”