Black lives really do matter. But the problem is institutional racism in America. That’s the overarching problem that exists.
—Joe Biden, 2016.
It was Labor Day weekend in 1980 when a young motorist found himself being tailed by an irate Joe Biden.
The young man had been speeding down an abandoned road when Biden, attending a nearby birthday party at his sister’s house, spotted him. Alarmed at the driver’s recklessness when his and the other parents’ kids were playing outside — and no doubt triggered by the trauma of the crash that had killed his first wife and baby daughter — Biden jumped into his car and chased him for more than half a mile, finally catching him across state lines in Pennsylvania.
Making a citizen’s arrest, Biden charged the twenty-six-year-old with reckless driving in magistrate court; he returned not once but three more times to make sure the charge was filed in a case that he, having made the arrest, would have to personally prosecute. Biden only dropped the charge after the motorist started desperately calling him every day, telling him he was a hard worker, this was his one and only such joy ride, and he could lose his license if convicted. Asked by the Wilmington News Journal after he dropped the case if he was just avoiding prosecuting a potential voter, Biden replied: “I wouldn’t have minded that. It would have been fun.”
This wasn’t the first time Biden had dabbled in some minor vigilante justice. Three years earlier, he had chased down two purse snatchers and returned the stolen goods to the victim. But this incident was different in the lengths to which Biden went make sure one young motorist’s irresponsible joy ride would be punished by the criminal justice system.
“Some guys they just give up living and start dying little by little, piece by piece,” Bruce Springsteen, the poet of blue-collar America, had sung in 1978. “Some guys come home from work and wash up, and go racing in the street.” And other guys, it seemed, do citizen’s arrests and prosecute those guys.
The incident was a powerful symbol for the sharp turn Biden’s career would take from the 1980s onward as the twin issues of crime and drugs took a central role in his political persona. It captured the zeal with which Biden would prosecute the late twentieth century “wars” against both, which quickly and seamlessly morphed into a war on the mostly nonwhite underclass of the United States.
It’s practically impossible to divorce political issues in the United States from race. As everyone from newspaper reporters to sociologists would discover from the 1970s on, almost every hot-button topic in US politics, including education, welfare, and the size of government, was, in an era barely a few decades out from Jim Crow, deeply tied up with voters’ racial attitudes. It was something Ronald Reagan had capitalized on in a presidential campaign that darkly signaled to conservative white voters that he understood their frustration over minorities supposedly gaming the system to get ahead.
But perhaps no issues were more wrapped up in America’s fraught history with race than crime and drugs. By the time the 1960s were over, outright racism and support for American apartheid had become out of bounds, and conservatives needed a way to keep capitalizing on white voters’ racist fears without coming across as defrocked Klansmen. The genuine rise in crime and drug use during the 1960s proved the most fertile ground. It is little wonder, then, that so many of Congress’s most-storied former segregationists so easily made the transition into tough-on-crime-and-drugs warriors after the 1960s.
Through the late 1970s to the 1990s, those racist lawmakers would become some of Biden’s most reliable allies in erecting today’s US carceral state, one whose prison population continues to dwarf the rest of the world’s, including even the dictatorship of Saudi Arabia and the one-party state of China. Those prisons would be filled disproportionately with the African Americans who bore the brunt of middle America’s increasing hysteria over crime — and who would often be forced to do backbreaking, dangerous work for no pay, the only version of slavery the Thirteenth Amendment still allowed.
Over time, those prisoners would include not just blacks but more and more poor people of all races. And it was Joe Biden — the public defender and public housing advocate who reminisced about his days marching for civil rights and bragged that he was the only white man in Delaware who could walk in the black part of Wilmington — who led the way to get there.
Gearing Up for War
While Biden certainly made crime an issue in his first campaigns, his policy bite never matched his bark, stressing psychiatric care and job training instead of harsh punishment.
Nevertheless, his early willingness to demagogue on the issue gave a hint of what would come. Biden insisted during his 1972 campaign that crime was on the rise, even as Joseph Dell’Olio, executive director of the Delaware Agency to Reduce Crime, who Biden himself called “eminently qualified” to judge crime trends, complained that politicians were distorting the figures for political reasons. A frustrated Dell’Olio told the press that a survey of crime statistics showed serious crimes — including murder, rape, assault, and robbery — had fallen by 3.1 percent statewide in the first six months of 1972 and by 23.1 percent in Wilmington specifically. A doe-eyed Biden told reporters he didn’t think Dell’Olio was talking about him.
It was clear throughout Biden’s career that he understood the panic over crime — and the “tough,” invasive measures a growing number of politicians were urging to deal with it — were both mistaken. He criticized Nixon that year for putting law-abiding Americans’ privacy at risk through a series of illegal wiretaps meant to crack down on organized crime. In 1978, he prophetically warned that if the problem of prison overcrowding wasn’t solved — preferably, in his view, by building more jails — “the political hysteria of the law and order campaigns of 10 years ago will be mild by comparison.”
Three years later, as inmates fed up with the miserable conditions in the state prison in Graterford, Pennsylvania, took employees hostage, Biden took Ronald Reagan to task for his criminal justice policies. “It costs more money to keep a prisoner in jail than to send your son or daughter to Harvard or Yale — $30,000 a year,” he told a crowd in Pittsburgh. “That’s preposterous.” Charging that the Graterford crisis had been set off by overcrowding and shameful conditions, he accused the administration of a nonsensical philosophy of calling for harsher sentences while ignoring the problems they created. He proposed instead alternative sentencing, particularly for nonviolent offenders, which would let them live normal lives but, say, work on a prison farm over weekends.
Even as he uttered these words, Biden was busy embracing the very philosophy he was attacking. During his first Senate campaign, Biden challenged women to walk alone at night to Prices Corner Center in Delaware if they didn’t believe what he said about rising crime. He claimed that “back in the polio days, heroin was still a mysterious drug and kept jazz musicians going all night,” sparking an objection from the leader of a local musicians’ union. A Biden campaign ad called drug dealers “potential killers” who should be tracked down “like we track down killers,” leading one local columnist to point out that “prison is not the answer to all drug selling” since there was copious evidence “their crime was more of a symptom” of their own drug addictions. Biden’s fearmongering was by no means universally accepted at the time.
This only intensified after he won the seat. One month after the election was over, Biden went to a meeting of the New Castle County Grand Jury with the rest of Delaware’s congressional delegation and declared that the way to control drugs and crime was by upping the number of courtrooms, prosecutors, judges, and prison space. By his third month in the Senate, he had voted to raise mandatory sentences for nonaddicted drug dealers and criminals using firearms to commit federal crimes. “We must face up to the fact that we don’t know how to rehabilitate, that parole boards are not competent, and the certainty of punishment is a deterrent to crime,” he told the ACLU’s Delaware chapter in 1976. Americans, he said in the Senate that year, “are worried about being mugged on the subway. Women are worried about being raped on the way to their automobiles after work.…They worry that their government does not seem to be doing much about it, and unfortunately, they appear to be right.”
In early 1977, Biden left the Senate Banking Committee, which he had chaired, for a lower spot on the more esteemed Judiciary Committee. Not coincidentally, it was the year before his first reelection campaign. In his earlier posts, Biden had worked on bills to regulate the predatory private debt-collection industry. But this no longer suited his interests. “I think other issues are more important for Delaware — the issues of crime and busing,” he explained. He told the press that his place on the committee would fall somewhere between the liberal Ted Kennedy and the conservative James Eastland, the white supremacist and former segregationist who served as its chair. That Biden gave up his place on Banking’s housing subcommittee to do this was grimly symbolic: instead of providing homes for the poor, he would spend the following decades housing them in jails.
One of the first things Biden did on the committee was push for what would come to be known as mandatory minimums: fixed, specific sentences for every crime, without any ranges or the possibility of early release. He painted this as progressive, removing “the ability of judges to abuse discretion” against defendants “who don’t meet the middle-class criteria of susceptibility to rehabilitation.” Criminal justice experts wrote to the committee in response, warning that this idea, along with abolishing parole, “could lead to large increases in actual duration of confinement.”
By the close of the decade, Biden set his sights firmly on the question of drugs. As early as 1972 he had been calling for an international response to the drug issue, including pressure on Turkey and Southeast Asia to stop poppy cultivation. Now, from his perches on the Judiciary and Foreign Relations committees, he could do something about it.
“We are unprepared to stem the flood,” he said. “Southwest Asian heroin has already swamped Western Europe, especially Germany and Italy, where I understand it’s hard to walk without stepping on the hypodermics and where local police stand helplessly by as they watch the cream of German and Italian youth ‘shoot up’ in the public park.”
As Biden saw it, the problem was “that drug enforcement is too decentralized.” His ideal setup, he explained, would make law enforcement so centralized that the head of the Drug Enforcement Agency (DEA) could call up the head of the National Security Agency (NSA) and request he “task our spy satellites to search out the heroin supplies.” This fantasy of a centralized government assault on drugs that involved all the different national security bodies was every civil libertarian’s nightmare — and particularly perilous given that some agencies like the NSA, the United States’ foreign surveillance service, were, at least in theory, explicitly barred from turning their powers on Americans. But as would soon become clear, no excess was too much for Biden when it came to drugs and crime.
Throughout the Reagan years, Biden butted heads with the president over the creation of a “drug czar,” a cabinet-level post that would make this vision a reality. Biden’s “czar” could coordinate agents from the DEA, FBI, and Treasury, as well as the Coast Guard and even the Pentagon, to fight drug trafficking. In at least one of Biden’s bills, the drug czar would even have authority over the attorney general and other cabinet officers.
Owing to his distaste for enlarging government, Reagan resisted the move every time Biden tried to get it passed, even vetoing a major anti-crime package in 1983 because of it. On Reagan’s side was then-associate attorney general Rudy Giuliani, the future mayor of New York City who would famously spend the 1990s crusading against crime in the city. A decade earlier, he called Biden’s idea “irresponsible and possibly unconstitutional.” Both Giuliani and Reagan claimed that the agencies actually involved in fighting drug trafficking were universally opposed to creating a “drug czar,” a claim seemingly borne out when the commissioner of US Customs wrote into the New York Times objecting to Biden’s bill and charging that his claim of a lack of cooperation between agencies was flatly wrong. Biden had got himself into such a lather over the issue that even some of the country’s toughest tough-on-crime warriors thought he was going too far.
Biden regularly criticized Reagan for not being tough enough on crime and drugs. Early on, he commissioned a report into the Justice Department’s use of civil forfeiture — or, as it turned out, lack thereof. Biden criticized the department’s “lack of leadership” and vowed to introduce legislation making it easier for the government to seize drug dealers’ money and property. He chided the administration over and over for not demanding more money from Congress, fretting about the threat to anti-drug enforcement from “budget-cutters” and hitting Reagan for “unnecessary budget cuts” to law enforcement agencies. Reagan’s war on crime, he said, “is just flat out phony.”
Biden’s demands to rein in spending — his dark, apocalyptic warnings that “the future’s slipping from our grasp” if America failed to tackle its growing deficits — simply vanished when it came to the topics of crime and drugs. “The drug trade is as much a threat to the international security of America as anything the Soviets are doing,” he said. Calling it a “national defense problem,” he claimed that Americans were “easily as much in danger on the streets as [they] are from Soviet missiles.” Because “personal security is equally as important as national security,” fighting crime should be as big a priority as “strengthening our military forces.”
Tuesdays With Strom
Biden found a committed ally in this fight in five-term South Carolina senator and Judiciary Committee chairman Strom Thurmond. Thurmond was a racist former segregationist and a sexual predator, notorious for assaulting women in Capitol Hill elevators, who had, as would come out later, raped a black teenage maid — she gave birth to a child whose existence he would deny to his death. To this day Thurmond holds the record for the longest filibuster in the Senate’s history; he attempted to talk an already watered-down 1957 Civil Rights Act to death over the course of twenty-four hours.
At first ambivalent about having to work with Thurmond, Biden would come to think of him as an “old buddy,” the two men brought together by their shared views on crime. Thurmond called crime “the number one threat to organized society” and believed the courts had “become laughing stocks in criminal circles because lawbreakers fully realize that the system is balanced in their behalf.” When Thurmond finally died in 2003, Biden was one of only nine senators from the 255 who had ever held office and were still living to attend the funeral. He eulogized the 48-year Senate racist as a “brave man” whose “lasting impact” was a “gift to us all.”
The march to mass incarceration began in 1981 when Thurmond rammed a massive rewrite of the federal criminal code — one that the ACLU warned would “severely set back civil liberties and individual rights in this country” — through the Judiciary Committee. His only opposition were the committee’s Republicans, with conservative senator Chuck Grassley complaining that Thurmond was trying to push the legislation through too quickly, calling it “intimidation.” In an 11–5 vote, only one Democrat stood against Thurmond’s bill, and it wasn’t Biden.
The following year, Biden cosponsored a bill that Thurmond introduced into the Senate, with the elimination of parole and the introduction of preventive detention, a first during peacetime, at its core. The legislation did the latter by giving judges more power to deny bail to defendants considered a danger to society, with a “presumption” that anyone charged with drug trafficking or using a weapon in a violent crime fell under that label, thus radically changing the nature of bail. It also set harsher punishments for jumping bail and dealing drugs, limited sentence reductions for prisoners with good behavior records, and empowered the government to seize and sell assets of drug smugglers (anything from real estate and cars to jewelry and money). Some of the proceeds were to be reinvested into rewards for information leading to more arrests and seizures. A pleased Reagan called it “long overdue.”
All of these bills ultimately failed, as did Biden and Thurmond’s work in 1983 cobbling together a bipartisan coalition in Congress to pass Biden’s drug-czar legislation, which Reagan vetoed. But the two men were undeterred. For their next swing at the US criminal code, Biden and Thurmond dropped the drug-czar provision while reintroducing the controversial provisions of the earlier bill into what would become the Comprehensive Crime Control Act of 1984 (CCCA).
Signed into law in October 1984, the CCCA was deemed at the time by several high-ranking law enforcement officials as the most significant set of changes to the federal criminal justice system ever enacted at once. To the provisions Biden and Thurmond had tried to pass in earlier bills, the new law added a reversal of the insanity defense — putting the onus on defendants to prove they were insane when they committed their crime, rather than on prosecutors to prove they weren’t — and lowered the age at which a teenager could be prosecuted as an adult from sixteen to fifteen, among other measures. The law’s most controversial parts — restoring the death penalty to federal crimes, habeas corpus “reform” to limit appeals to convictions, and restrictions to the “exclusionary rule” that forbade illegally obtained evidence from being used in trials — were eventually dropped to be dealt with separately later.
One of the CCCA’s more far-reaching elements was the creation of a commission to set federal guidelines (read: rules) for sentencing. Advertised as a way to make sentencing more uniform and fairer, it ultimately did the opposite, creating mandatory minimum and maximum prison terms for drug crimes and taking away the wide discretion judges had in sentencing. One Republican senator who had tried to slow the bill’s passage, Charles Mathias, called the measure a “sentencing machine” whose strict rules would “invite further overcrowding” and “the possibility of a prison disaster.” He was proven right. Combined with the other provisions, the already overcrowded federal prison population exploded, growing 32 percent after its first year and pushing some jails to more than 100 percent of their capacity. By the time the guidelines were declared unconstitutional by the Supreme Court in 2005, Biden and much of the rest of the political establishment would come to view the law as a colossal regret.
The CCCA’s other major legacy was the dramatic expansion of civil forfeiture law, something Biden had tried to get passed repeatedly through earlier legislation to no avail. Now, under the new law, assets could be seized by state and local law enforcement who were working with federal agencies, simply on the basis of the “probable cause” that they had been used for or derived from illegal purposes — if a drug crime had been planned or carried out on a premises, for instance. No conviction was necessary. If state laws restricted police from seizing assets, then no matter: the CCCA had local authorities send the property to be processed by the federal government, which would then return up to 80 percent of the value to them, neatly sidestepping any restrictions.
This quickly became a go-to tool of rampant, breathtaking abuse by law enforcement. Motorists, mostly but not exclusively black and brown, would be stopped, searched, and ultimately have their money and other belongings taken by police for reasons that could be generously called spurious, often with no evidence or charges of a crime and little to no hope of getting it back. As early as 1991, a ten-month investigation by the Pittsburgh Press found 83 percent of all items seized by the DEA were worth less than $50,000, and that police had racially profiled, stopped, and taken the money of hundreds of people without finding drugs or filing charges. And it wasn’t just motorists: hundreds of homes were seized from homeowners, whose kids or grandkids were accused of drug crimes, too.
Today, even with reforms, forfeiture is a cash bonanza for police departments, with one former official calling it a “free floating slush fund” police use to plug budget holes, stock their departments with unnecessary military equipment and weapons, and, naturally, pay for parties and luxury goods for themselves. Between 1986 and 2014, the value of property seized climbed 4,600 percent, from $93.7 million to $4.5 billion. At the behest of fighting crime, Biden had successfully facilitated the decades-long wholesale robbery of working-class Americans by law enforcement.
By the time Biden was gearing up for his presidential run, the Wilmington Morning News cited his and Thurmond’s CCCA as his most significant legislative accomplishment, contrasting it with the way he had played “second fiddle” to a host of other Democrats in extending the civil rights–era Voting Rights Act. But he wasn’t done yet.
In 1985, Biden tried to export the US drug war to South America and the Caribbean, sponsoring a bill that conditioned US foreign aid to Brazil, Bolivia, and Jamaica on their governments’ progress on drug eradication, including, in the latter case, marijuana. In 1986, after trying and failing for the third time in five years to get a drug-czar bill passed, Biden sponsored a $1.65 billion anti-drug bill written by a twelve-member task force he had chaired; it would become the Anti-Drug Abuse Act of 1986.
Whereas Biden’s last anti-drug bill had been held up in the Democrat-controlled House, this round saw a full-court press by the party to get something passed. Not only was it an election year, but 22-year-old Maryland college basketball phenom Len Bias had just died of a cocaine overdose, one widely — and wrongly — believed to have involved crack. Bias was a nationally known star and had been picked second overall in the NBA draft by the Boston Celtics, hometown of Democratic House Speaker Tip O’Neill, who returned to Congress from a recess during which Bias’s death had been the talk of the town. “They want blood,” he told Democrats. He ordered them to “get out in front of the White House” and put a bill together. Eric Sterling, then-counsel to the House Judiciary Committee who was closely involved in the writing of these bills, later recalled the process was like something “cobbled together with chewing gum and baling wire,” with almost no hearings and no input from key stakeholders. But the country was in the grip of a national hysteria around crack. Even Jesse Jackson called for upping military force at the border as a response.
In the Senate, Biden’s version passed 97–2. The bill poured funding into more anti-drug agents, prosecutors, and prisons; doubled penalties for using minors to distribute drugs or manufacturing them near schools; and gave the defense secretary three months to draw up anti-drug initiatives for the US military. Predictably, the legislation set harsh mandatory minimums around crack: five years for anyone simply possessing five grams or more of the drug, ten years for anyone with fifty grams or more, and twenty years to life for any death or serious injury resulting from drug sales.
If Biden’s and the rest of Washington’s stinginess been consistently applied, the costly measure might have run into serious problems. Instead, by voice vote, the Senate passed a resolution making clear it preferred the funding to come from violating the spending ceiling set with the Gramm-Rudman law by finding some new, unnamed source of revenue. “We faced up to the fact that this would cost some new dollars,” Biden had said.
Few commented at the time on what would be the law’s most infamous and far-reaching provision — the one-hundred-to-one sentencing ratio that gave the same prison term to someone convicted of possessing five grams of crack as it did to someone possessing a half-kilo of powder cocaine. This was way above the Reagan administration’s preferred twenty-to-one ratio and even the House Democrats’ fifty-to-one ratio. Only one hearing was held on the matter, lasting a mere few hours. It just so happened that crack cocaine was used overwhelmingly by poor, black Americans, who would feel the full brunt of Biden’s law in the decade to come. The Senate and House versions were reconciled, and Reagan signed the bill in October 1986, just in time for the midterm elections. Decades later, Biden would call the law a “profound mistake,” long after the political winds had shifted on the matter.
But Biden wasn’t done. Less than two months after returning to the Senate in August 1988 after his brain surgeries, he led the negotiations between House and Senate leaderships on a $2.5 billion anti-drug bill that broadened the drug war beyond just dealers and “kingpins” to now envelop ordinary recreational drug users.
Besides including the drug-czar provision on which Biden had been thwarted over and again, the bill levied fines of up to $10,000 for anyone caught with small, personal-use amounts of drugs; allowed anyone who killed or ordered a killing while committing a drug-related felony to be put to death; automatically revoked probation, parole, and supervised release from anyone convicted of possession; and disqualified them from getting student loans, government contracts, mortgage guarantees, and other federal benefits. Biden added amendments upping the punishment on anyone convicted of dealing steroids and raising $900 million through additional taxes on cigarettes and alcohol to fund the drug war, only the first of which was successful. The bill would pass, going $2 billion over Congress’s self-imposed spending ceiling. “Today I feel very proud,” Biden said as the bill neared passage. The drug-czar post, he said, “in the long run will do more for our children than any anti-drug measure we have ever adopted.”
Reagan signed the bill into law on November 18. Eight years after first proposing it, Biden’s drug czar was finally a reality. “If I don’t serve another day in the Senate and that bill passes, I will have made a contribution,” he told an audience in Wilmington.
Biden had definitely made a contribution. While far from the only factor, this spate of Reagan-era bills is now recognized as directly responsible for the explosion in the US prison population and all of the injustices related to it. Between 1979 and 1988, as arrests for burglary, drunkenness, and disorderly conduct declined, drug arrests shot up by nearly 90 percent, more than any other offense. By 1990, the average prison sentence for manufacturing, dealing, or even possessing one kilogram of heroin — ten years without parole — was several years harsher than the average punishment for homicide or sex crimes. Thirty-five years out from 1980, the federal prison population had ballooned by 734 percent, with half of those prisoners serving time for drug offenses.
And it was African Americans more than any other group who suffered, with the preexisting racism of America’s criminal justice system magnified by the new powers, laws, and resources Biden had handed it. In 1986, when the first Anti-Drug Abuse Act passed, African Americans faced an average drug sentence 11 percent higher than whites; four years later, the disparity was 49 percent. Three decades later, African Americans who were arrested, convicted, and sentenced for drug offenses made up 37 percent, 59 percent, and 74 percent of the overall totals, respectively, despite comprising only 15 percent of drug users. They accounted for more than 80 percent of those sentenced for crack offenses, even though 66 percent of crack users were white or Hispanic; and 73 percent of those were low-level drug criminals, far from the “kingpins” Biden had raved against.
Yet it was never enough. Biden’s frenzy over the issue would climb to new, outlandish heights by the end of the decade. In 1989, he suggested the new drug czar could encourage police teams to go into drug-laden neighborhoods and even schools to take on violence. Biden urged the authorities to explore the idea of a vaccine that prevents drug addiction, a fantastical idea that a National Institute on Drug Abuse official warned would likely involve targeting neighborhoods of mostly black kids — and developing a product that would suppress not just the good feeling that resulted from drug use but any sense of enjoyment, so that “it would in effect make life not worth living.”
“I am fearful, increasingly fearful that Americans fearing for their families will be susceptible to those who suggest an answer lies in trampling the Constitution and the Bill of Rights,” Biden said about drugs in 1989. Yet that’s exactly what his actions had wrought. By the decade’s close, some schools would start drug-testing students and teachers, the government would make it easier to evict whole families from public housing for even a single member’s drug offenses, and the Supreme Court would allow agents to search suspects based purely on fitting the right “profile.”
Each attempt in US history to achieve a revolution in racial equality has been met with a subsequent counterrevolution. For the abolition of slavery and Reconstruction, that counterrevolution came in the form of Jim Crow and racist terrorism, as unreconstructed Confederates and former slaveholders took back power in the South and reimposed the conditions of slavery in all but name. For the civil rights victories of the 1960s, it came in the form of the mass carceral state drawn up by former segregationists and shepherded into existence by liberal civil rights supporters like Biden, now scared of alienating conservative voters and losing their powerful positions. Beyond that, however, this latter counterrevolution involved the extreme Right’s capture of the Supreme Court, something in which Biden would also play a role.
Packing the Court
The long-term triumph of the right-wing Reagan “revolution” lay not just in legislation and rhetoric but in the nation’s courts. For decades, conservatives had been grinding their teeth over the liberal direction of the Supreme Court, as its justices overturned long-standing local laws and “traditions,” appeared to invent new rights out of thin air, and seemed, in the eyes of conservatives, to generally be acting as a second legislative branch. Beginning in the 1970s, the Right walked the long road to take them back.
As ranking Democrat on the Judiciary Committee and later its chairman, Biden would preside over the start of the right-wing takeover of the federal courts that continues today. In some cases, his power to stop what was coming was limited, and he did the best he could; in others, he flat-out dropped the ball. In either case, Biden’s conciliatory approach stood in stark contrast to the combative, often uncompromising approach conservatives would take in the coming decades when placed in the same position. The result was that the Supreme Court, dominated by liberals since 1953, swung way to the right under Biden’s chairmanship, with 1960s-era civil rights protections perhaps the greatest casualty.
His war on busing aside, Biden had generally been on the right side of the civil rights battles with Reagan. When Reagan tried to pack the US Civil Rights Commission with conservative picks who opposed busing and racial quotas, Biden led the charge against him, criticizing Reagan’s sudden firing of three more liberal members and introducing a bill to create a congressional commission independent of the president. He opposed a variety of controversial Reagan nominees, including Thomas Ellis, who had sat on the board of a white supremacist nonprofit; Edwin Meese, a Reagan loyalist whose big break came in prosecuting student protesters in California; and Jeff Sessions, who had labeled the activities of church and civil rights groups “un-American” and unsuccessfully prosecuted civil rights activists on trumped-up charges of voter fraud; Biden expertly tied up Sessions at the witness table by pointing out contradictions in his testimony. He was also one of the most vocal critics of Reagan’s friendly relationship with South Africa’s apartheid government, assailing Secretary of State George Shultz over the policy in front of cameras, a clip that would become the talk of TV and print news for a time.
Yet even here, Biden’s primary weakness — his desire to not offend conservative sensibilities and at all costs appear evenhanded — shone through. “You’re not the issue,” he told Reagan’s Civil Rights Commission picks. “The perception, the signal being sent out is horrible,” he said, charging that Reagan’s actions would “taint” the independence of the commission. While Ted Kennedy called Sessions “a disgrace to the Justice Department,” Biden made clear that “the issue here is not whether Mr. Sessions is a racist,” but simply that his comments — including repeatedly calling his black deputy “boy” — were “inappropriate” for a federal judge. Meanwhile, Biden’s July 1986 broadside against Shultz and the administration’s “lack of moral backbone” on apartheid was interpreted by some as grandstanding for the sake of his impending presidential run.
In some cases, Biden couldn’t do much, as with Reagan’s 1986 nomination of the ultraconservative William Rehnquist to be the Supreme Court’s chief justice, the man the New York Times would later eulogize as the “architect” of the right-wing court that has presided for the past three decades. Over the course of a grueling hearing, Rehnquist stonewalled questions about his philosophy or how he would rule on certain issues. Despite a fifteen-year record of rulings and opinions on the Supreme Court, Biden and the Democrats instead focused mostly on Rehnquist’s character, with varying effectiveness. Allegations that Rehnquist had tried to suppress the black and Hispanic vote in Phoenix as a 1960s Republican activist occupied much of the hearing, along with the committee’s attempts to force the Reagan administration to release memos relating to illegal wiretaps that Rehnquist had written while serving in Nixon’s Justice Department.
The efforts went nowhere: Rehnquist was suspiciously incapable of remembering details of his own life, and an inquiry pulled up “no smoking gun” from the memos, in Biden’s words. At one point, the efforts spectacularly backfired. When the Democrats revealed Rehnquist had owned two properties whose deeds banned African Americans and Jews from owning them, a conservative group found that, unbeknownst to them, the deed on the home of Biden’s parents likewise barred blacks from owning or occupying it.
Biden ultimately voted against Rehnquist, but his efforts didn’t leave everyone satisfied. Feminist and civil rights groups were disappointed that he hadn’t led the fight against him during the hearings and then went on This Week with David Brinkley the Sunday after the hearings were over and declined to announce his opposition. Biden had told Brinkley the eyewitness allegations that Rehnquist had harassed voters of color in the 1960s were less important than his honesty. “The issue for me is when a justice looked at us and said, ‘I’ve never challenged a voter,’ whether or not he’s telling the truth,” he said. “It has nothing to do with harassment.
In other cases, Biden was pivotal in inadvertently advancing the conservative cause. Reagan had paired Rehnquist’s nomination with that of appeals court judge Antonin Scalia to become an associate justice in Rehnquist’s vacated spot. Scalia, a scholar at the right-wing American Enterprise Institute, was identical in his beliefs to Rehnquist. He had been critical of the Roe v. Wade decision legalizing abortion; written that the courts had “gone too far” in creating new rights in busing, affirmative action, and abortion; and mocked affirmative action in articles, joking that the court could invent a “Restorative Justice Handicapping System” that told everyone at birth how much discrimination they would face in life.
Maybe it was the fact that he brought his nine children and wife of 26 years to his confirmation hearing and his past featured none of the red flags of the scandal-ridden Rehnquist, or his insistence that he had “no agenda” and was more moderate than both his backers and opponents said he was, but Scalia drew none of the same hostility from either Democrats or activists. Scalia’s views were “within the legitimate parameters of debate,” Biden said, echoing Ted Kennedy’s conclusion that he was “a conservative, not an extremist.”
“I was encouraged by Judge Scalia’s statement that he does not have an agenda of cases he is seeking to overturn,” he said. “I do not find him significantly more conservative than Chief Justice Burger.” Scalia was approved by the committee with an 18–0 vote.
About the same time, when a seat opened up on the prestigious US Court of Appeals for the Seventh Circuit, Reagan nominated the wildly unqualified Indiana lawyer Daniel Manion to fill it. Manion was an admirer of the conspiratorial right-wing group the John Birch Society, which his father had founded, and someone who the deans of forty major law schools urged the Senate to reject for lacking “scholarship, legal acumen, professional achievement, wisdom, fidelity to the law and commitment to our Constitution.”
Knowing the numbers to confirm Manion were close, Biden recklessly challenged the Senate Majority Leader Bob Dole to a straight vote on the confirmation, then being held up by a filibuster. To sweeten the deal for a reluctant Dole, Biden offered to make two Democrats abstain to balance out the absence of two Republican senators who Biden had been told planned to vote for the nominee. By one vote, the Senate went against Manion, only for one Republican to switch her ‘no’ vote at the last minute, leading then-Vice President George H. W. Bush to hustle down to the Senate to cast the tiebreaking vote in Manion’s favor. Realizing what he’d done, Biden, as one of the two Democrats who had sat out the vote, tried to renege on the deal. He would later find out neither of the absent Republicans had declared their support for the nominee.
Biden was temporarily saved by some procedural maneuvering that forced a revote, but thanks to another Republican switch, that also ended up in a tie that Bush broke. Biden could only say he was “extremely disappointed” at those who had switched. But the fault lay with him. Instead of safely continuing a filibuster, Biden had risked a vote with a knife’s-edge margin and credulously trusted Senate colleagues who had misled him. Manion was put on the court, where he sits to this day.
In 1987, Reagan selected another hard-right nominee, Robert Bork, to replace the Supreme Court’s retiring swing vote, Lewis Powell. This time, Biden would face off with Reagan’s nominee as Judiciary Committee chairman. While it was a prestigious post for a young, barely three-term senator, he had only reluctantly accepted, initially encouraging Kennedy to take the chairmanship. The added responsibility would make running an election campaign difficult, and the position was a poisoned chalice: it would give him the national spotlight he’d never had but put him in the center of grueling partisan battles involving controversial issues.
Biden and Bork had a history. The two had briefly been allies in the fight against busing when Bork was solicitor general, taking part in an hour-long meeting in the attorney general’s office eleven years earlier as Biden tried to convince the Justice Department to intervene in the Wilmington busing case. When Bork was nominated for a judgeship in 1982, Biden asked him no questions, and, like most judges, he was confirmed unanimously. Since then, Biden had repeatedly praised him. During the Manion fight, he lauded Bork as having “the earmarks of excellence,” and later that year, in an interview with the Philadelphia Inquirer that was vintage Biden, he vowed to defy liberals and back Bork if he was nominated to the Supreme Court. “Say the administration sends up Bork and, after our investigation, he looks a lot like another Scalia,” he said. “I’d have to vote for him, and if the groups tear me apart, that’s the medicine I’ll have to take. I’m not Teddy Kennedy.”
Despite faltering early on, Biden got good marks for his stewardship of the Bork hearings, which lasted an unprecedented 30 hours. As activists turned up the pressure on lawmakers from the outside, Biden worked his relationships on the inside, slowly persuading his centrist colleagues to turn against Bork. It was a case study in what could be achieved when Biden worked with the progressive grassroots groups he typically thumbed his nose at.
What finally swung public opinion was the combative, unfiltered Bork’s own clearly stated beliefs, which Biden baited him into revealing. They alienated a broad swathe of Americans: one hundred law school deans and professors signed a letter against him, groups ranging from NOW and the NAACP to the ACLU and AFL-CIO opposed him, and his antipathy for just about every major piece of civil rights legislation turned Southern Democrats against him, relying as they did on the black vote for reelection. Those involved believed Biden’s chairing had ably defused attacks on the hearings as unfair while drawing out Bork’s alarming views. Bork lost.
“You all said it was my test, you all said it was not likely to be able to be done,” Biden told the press, insisting they now needed to reconsider their opinion of him.
Almost immediately, though, Biden would undo the good he had done. He met again with the White House, and together with Byrd, he singled out three names from Reagan’s list that the Democrats wouldn’t object to. Byrd advised them to choose a conservative, but one without “a big track record” of writing and speeches, as Bork had fatally had.
Reagan first chose a completely different nominee, who quickly went down in flames over revelations he had once smoked pot. But his next choice was appeals court judge Anthony Kennedy, one of the three picked by Biden and Byrd. Biden quickly signaled his approval. “He seems on the surface like a mainstream conservative whom I can support,” Biden said, declaring his prospects “good based on what we’ve seen and read so far.”
Biden wasn’t alone: Kennedy’s comparative lack of paper trail and moderation next to the speechifying, fire-breathing Bork won over the entire liberal establishment. Harvard law professor Laurence Tribe, one of Bork’s fiercest opponents, declared Kennedy’s legal opinions “refreshingly moderate” and testified in his support. The New York Times and Washington Post published glowing profiles assuring readers he was a “restrained pragmatist” who would “respect precedent” and held no “desire to change the modern course of constitutional law.” The activist groups who had mounted an offensive against Bork fell silent. “I expect this to move very swiftly…and I hope—and I mean this sincerely—I hope you enjoy the experience,” Biden told Kennedy as he opened the confirmation hearings. “I think everyone on this committee looks very favorably on your nomination.”
Despite a number of alarming decisions in Kennedy’s past — including striking down a ruling on pay equity for women and upholding the Navy’s policy of discharging gays, lesbians, and bisexuals — which Biden would have known about if his boast that he and the committee had read all 438 of his opinions was true, Biden used his time to feed Kennedy mostly softballs. He praised Kennedy throughout and remarked that he hoped “we move this along” so they could “all get out of here.” It was almost entirely up to Ted Kennedy and the activists testifying as witnesses to discuss the disquieting parts of the nominee’s record, including his membership in clubs that excluded women and African Americans, and Jesse Helms’s recently reported remarks that Kennedy had privately indicated to him his opposition to abortion. In his testimony, civil rights advocate Joseph Rauh accused Biden and the rest of the committee of playing “patty cake” with Kennedy.
Kennedy was confirmed in spite of this opposition, and his ascension to the Supreme Court served as the keystone of conservatives’ long, patient construction of a right-wing court. On the bench, Kennedy turned out to be far more conservative than even conservatives themselves expected, and he set about overturning precedent and taking a scythe to the civil rights and protections enshrined by the previous liberal courts, starting with his early decision to side with the four other conservative justices to review (unusually, at the request of neither side’s lawyer) a 1976 decision that had opened the floodgates to a broad range of discrimination suits.
By the close of the decade, Kennedy, who voted with Rehnquist and Scalia 92 percent of the time, joined his fellow conservative justices in ruling that racist harassment didn’t count as discrimination, workers had to prove intentional racism to bring discrimination lawsuits against employers, and courts couldn’t force integration in cases where segregation was the product of residential patterns — something that Biden, fittingly, had long been insisting on. Kennedy was “Bork without a beard,” complained a bitter Tribe, who had testified in support of him; conservatives, who couldn’t believe their luck, whooped and cheered. By the time he retired in 2017, he was easily one of the most conservative justices in the Supreme Court’s history. “At least as conservative as Bork was expected to be, Kennedy has moved the court’s center much farther to the right than observers on either side of the ideological divide expected,” wrote the Washington Post.
The Clarence Thomas Fiasco
But there was one more piece of the right-wing campaign to reshape the courts to come. In 1991, Reagan’s vice president and successor George Bush picked appeals court judge Clarence Thomas to replace the legendary Thurgood Marshall on the Supreme Court. Unbeknownst to Biden, the battle over Thomas’s nomination would become one of the defining moments of his career.
When the hearings began in September 1991, Biden was in a good position politically. He had just cruised to reelection the previous year with 62 percent of the vote in another campaign that was vastly better funded than his opponent’s, and he had ruled himself out of running for president the year after. Even so, his conduct of the hearing would be savaged.
Biden had already voted for Thomas once, part of a deal he had struck with the administration in 1990 that the White House, having assured Biden there was no intention of moving Thomas up to the Supreme Court, violated soon after. The 12–1 Judiciary Committee vote helped send Thomas to the DC circuit court of appeals after hearings that saw a parade of witnesses complain about his eight-year-long chairmanship of the Equal Employment Opportunities Commission (EEOC). Thomas was accused of being “anti-elderly,” promoting gender discrimination, and ignoring rules he disagreed with. “His capacity and competence, I think, are beyond attack,” Biden had said.
Now, the pressure was on to oppose Thomas. Letters and calls poured into Biden’s office from anti-Thomas constituents, and the NAACP’s Wilmington branch held a news conference at the Wilmington train station, from which Biden traveled by Amtrak to DC every day, urging him to “take every step and every measure” to drill into Thomas’s “one-sided conservative views.” Women’s groups stressed that Thomas’s confirmation would imperil abortion rights.
Biden would let them all down. Vowing to turn the hearings into a referendum on Thomas’s conservative ideology and the concept of “natural law,” Biden was ultimately deemed “one of the worst questioners” by the Washington Post’s Supreme Court reporter John MacKenzie, who charged he had “buried some telling questions in an endless show of learning about natural law.” Only a Republican, Pennsylvania’s Arlen Specter, questioned Thomas about the controversy most associated with him: his time at the EEOC. “He should have been pressed about his opposition to affirmative action and goals and timetables,” said the NAACP’s executive director. One Harvard Law professor who had testified against Thomas complained of “being let down by some of our traditional allies in the Senate.” Even one Thomas backer found it “extraordinary” he’d been allowed a pass on the issue.
Biden once more sparred with abortion rights activists. He called their singling out of a 1987 speech by Thomas in which he praised an anti-abortion article a “failure of logic.” He insisted, even after Thomas stonewalled on questions about Roe v. Wade and Biden himself complained about his refusal to air his beliefs, that he hadn’t found anything in Thomas’s record “where he evidenced extreme views” on the matter. When Sen. Paul Simon suggested that Thomas attending a church actively involved in the anti-abortion movement might be a hint, Biden shot back that it was “absolutely, totally, completely irrelevant.”
Despite griping that there was “less latitude among women’s groups over abortion and a requirement, that unless a nominee explicitly supports choice, that you urge us to vote against the nomination,” Biden voted against Thomas in a 7–7 committee vote.
“Unfortunately, I do not share the certainty of some who are voting against Judge Thomas that he will be as extreme as some of the statements could lead one to believe he might be,” Biden said after the deadlocked committee sent the nomination to the Senate with no recommendation. “As a matter of fact, my heart tells me he won’t. My heart tells me he’ll be a solid justice.” A little over a week later, 35-year-old law professor Anita Hill came forward to accuse Thomas of having sexually harassed her.
Biden’s legendary mishandling of these allegations would haunt him for the rest of his career. As Hill’s charges brought Washington to a standstill and focused the nation’s attention on an issue then rarely spoken about, Biden used his position as chairman to shield Thomas from their full brunt while undermining his accuser. It was not just a case of egregious insensitivity about a pernicious and all-too-common injustice suffered by women, but a grave tactical blunder: after voting against Thomas, Biden had warned that a “fervent minority” in the GOP was “engaged in an open campaign to shift the court dramatically to the right”; his failure to hold Thomas to account helped lead that campaign to victory.
Biden had first learned of Hill’s allegations on September 12, two days into the hearings, and he would later say he knew right away that they could “become a giant incendiary bomb.” But he neither spoke to Hill himself nor tasked an investigator to do so, claiming it was “immoral to push her in any way.” Hill had told her story with the express instruction that she remain anonymous, and Biden, contrary to typical Senate practice, decided it would be unfair to let things proceed if Thomas couldn’t respond to his accuser. Neither did Biden or his staff inform any other senators about Hill and her claims, so that by the time the hearings were nearly over, only four members of the committee had even heard about Hill.
Biden only took action once news about Hill’s story spread to pressure groups and other senators and after she agreed to let Thomas learn her identity. But worried about making the investigation seem partisan, he sent the FBI to interview her instead of the committee’s own investigators, spooking Hill, who took several days to agree to it. Her silence made “the rest of us all feel relieved,” Biden told an aide.
After the FBI grilled Hill and produced an explosive report, Biden elected not to delay the imminent committee vote. Despite his staff’s assurances to Hill that committee members would all see the report, it took a personal call from Laurence Tribe on the day of the vote to get Biden to actually circulate it. He would later claim he had simply tried to protect Hill from being “victimized” and to honor her request for privacy; Hill fired back that she never said to keep her name and story from the committee, only the public.
Even after Hill’s story leaked to the press, forcing her to go public with her accusations and urge further investigation, Biden declared he saw “no reason why the addition of public disclosure of the allegations — but no new information about the charges themselves — should change” the decision to hold the Senate vote the next day. Only once pressure from the public and a group of female lawmakers led the pro-Thomas forces in the Senate to fear they had lost their majority was the vote postponed.
When all-new hearings were called, Biden, desperate as ever to appear fair and impartial, was swayed by the Republican leadership to agree to a set of demands stacking the deck against Hill and anti-Thomas forces. While some Democrats wanted weeks to properly investigate the allegations, Biden agreed to hold the hearings that Friday, exclude questions about Thomas’ sexual behavior more generally, not take another committee vote, and agree to a full Senate vote the following Tuesday, no matter what transpired. Worse, Biden agreed to Republicans’ request to let Thomas not only testify first — reneging on a deal Biden had made with Hill’s advisers — but also a second time, giving him both the last word and a much larger, prime-time audience. Thomas used it to issue what one GOP strategist called an “item-by-item denial” that “gave us the newspapers the next morning.” Biden had “agreed to the terms of the people who were out to disembowel Hill,” one Kennedy aide commented bitterly.
Opening the hearings by stating that “the primary responsibility of this committee is fairness,” Biden and the rest of the Democrats sat silent as the committee’s Republicans took turns assassinating Hill’s character: she was a “psychopathic sex fiend or pervert,” suffered from a “delusional disorder,” committed “flat-out perjury,” and plagiarized The Exorcist for her testimony, which amounted to a “smear campaign” against Thomas. When one senator asked Hill if she and Thomas had disagreed on abortion and Roe v. Wade, a question that could have embroiled Thomas in perjury given his testimony that he’d never discussed the case, Biden interrupted to rule the question out of order.
Most egregiously, Biden failed to call several witnesses who would have corroborated Hill’s testimony. One witness who could have testified to Thomas’s interest in pornography, a key part of Hill’s account, was never called because Biden thought it was irrelevant and “would have been wrong.” Limiting negative testimony solely to women who had worked with Thomas, Biden ignored a personal note written to him by Lillian McEwen, a former assistant US attorney who had previously worked for Biden and dated Thomas, reminding him of their relationship. He did the same with a letter written to the committee by one of Thomas’s former underlings at the EEOC recounting his inappropriate behavior. Angela Wright, a conservative Republican alum of Thomas’s EEOC who had suffered similar treatment to Hill that she detailed to Biden’s special counsel was subpoenaed by Biden to testify. But after running out the clock by giving Thomas’s sixteen character witnesses unlimited time to defend him, Biden released her from the subpoena. He issued a public statement of regret that the committee had run out of time; privately, his staff had pressured Wright to lie and say it had been her decision not to testify. Wright had waited three days to tell her story for nothing; her deposition would be entered into the written record, where no one would read it.
“It seemed to me the most important thing that I could do was to be fair and thorough,” Biden later said, having done neither.
Though Thomas had escaped accountability, Biden and the rest of the committee made sure at least someone would face justice: whoever had leaked Hill’s allegations to the press and thereby forced the additional hearings. They launched an inquiry to find and punish the whistleblower who had brought Thomas’s harassment to national attention, one so aggressive that they seized National Public Radio reporter Nina Totenberg’s phone records and nearly forced her to testify until backing down.
Biden’s performance in the hearings was almost universally panned, including by fellow Democrats, one of whom told him privately he’d let down his colleagues. It was Republicans, by contrast, who went out of their way to defend Biden; his steadfast commitment to evenhandedness and fairness had, after all, handed them a major triumph.
Why had Biden and the Democrats failed so badly? One answer is they themselves didn’t believe Hill. Thomas and his wife told journalists Jane Mayer and Jill Abramson that Biden had assured them after reading the FBI report that there was “no merit” to Hill’s claims, and Orrin Hatch, one of Biden’s pro-Thomas colleagues on the committee and a friend of Thomas’s, later recalled Biden privately making clear that he didn’t believe her. After the hearings wrapped up, Biden rushed up to the pro-Thomas witnesses as they waited for their taxis, letting them know he’d been “incredibly” impressed with their testimony and was now less disposed to believe Hill. Perhaps this is why, as Mayer and Abramson reported, Biden alone among Democrats actually seemed pleased in the aftermath, boasting in interviews about his improved name recognition and national exposure.
But another answer is that timid, sometimes scandal-plagued Democrats were cowed into submission by a Right that was ready and willing to wage a scorched-earth campaign to achieve its political goals. Before the first set of hearings had even begun, the conservative movement had fired a warning shot, running a sixty-second ad in early September questioning if “liberal Democrats” likely to oppose Thomas, like Biden and Kennedy, “could themselves pass ethical scrutiny” — a reference to their plagiarism and Chappaquiddick scandals, respectively. Indeed, throughout the hearings, Kennedy had stayed markedly, uncharacteristically silent, owing, many presumed, to the rape charges against his nephew William Kennedy Smith and his own history of womanizing, something he seemed to allude to in an apologetic speech after Thomas’s confirmation, in which he pledged to fix “the faults in the conduct of my private life.” Who knows how many others bit their tongue because of similar behavior in their pasts? As Ohio senator Howard Metzenbaum put it after learning of Hill’s allegations: “If that’s sexual harassment, half the senators on Capitol Hill could be accused.”
Whatever the case, Biden and the other Democrats’ failure was disastrous. With Thomas’ confirmation, Reagan and Bush had together filled six Supreme Court seats overall, permanently shifting the court way to the right, with Thomas its most conservative member. Under Rehnquist, the court would rule that affirmative action was almost always unconstitutional, severely curtail the right of appeal for death row inmates, and sharply weaken the power of the federal government over the states through its striking down of dozens of laws — the one notable exception being Bush v. Gore in 2000, where the Reagan- and Bush-appointed right-wing justices momentarily dropped their belief in states’ rights to end Florida’s vote recount and hand the presidency to George W. Bush. With the Scalia-Kennedy-Thomas triumvirate as its decades-long anchor, the court’s conservative majority would open the floodgates to unlimited money in elections, limit reproductive rights, expand corporate power while shielding corporations from accountability, block environmental regulations, and gut the Voting Rights Act, one of the civil rights movement’s hard-won prizes. After 2016, Kennedy and Thomas would help a court shifted even further right to uphold Donald Trump’s ban on travel from Muslim countries, cripple public-sector unions, and disenfranchise nonwhite voters.
Biden never apologized for his part in the Thomas hearings, offering Hill only two paltry non-apologies prior to launching his final presidential campaign. “I wish I could have done something,” Biden said shortly before announcing his candidacy.
His terror at appearing unfair, biased, or partisan was not shared by his Republican colleagues, who took advantage of these political neuroses while cheerfully doing the opposite, ultimately succeeding in reshaping the country’s most powerful court. Biden wasn’t playing the same game as his opponents, which is why he never even realized he had lost. It wouldn’t be the last time.
Politics, and more specifically, the Republican Party, was rapidly changing. Starting in the 1980s and accelerating rapidly in the 1990s, the GOP began its transformation into what political scientists Thomas E. Mann and Norman J. Ornstein in 2012 called “an insurgent outlier,” one that was “ideologically extreme; contemptuous of the inherited social and economic policy regime; scornful of compromise; [and] unpersuaded by conventional understanding of facts, evidence and science.” But Biden and many other Democrats wouldn’t notice this transformation until too late; their view of the US political system would remain frozen in time, rooted in the clubby, honor-bound and compromise-focused Senate culture of Biden’s early years. It would make them useful patsies for an ever-more ruthless and right-wing team of Republicans.