Constitutional Biden. Civil liberties' greatest salesman.

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by Jeffrey Rosen

The Obama-Biden slate is historic in many ways, but for law professors it has a special cachet: It's the first time that professors of constitutional law have occupied both slots on a ticket. Barack Obama was a senior lecturer at the University of Chicago Law School, and Joe Biden has been an adjunct professor at Widener University School of Law since 1991. More to the point, it's the most civil-libertarian ticket ever fielded by a major U.S. political party.

Moments after the September 11 attacks, as Biden watched his colleagues evacuate the Capitol, a reporter asked him whether America would have to revisit the way it protects our public institutions. "I hope that's not true," Biden replied, according to his autobiography. " we have to alter our civil liberties, change the way we function, then we have truly lost the war."

It was a telling response, given the situation unfolding around him--and a perfect reflection of his career. As chairman of the Senate Judiciary Committee, and the veteran of some of the most bruising Supreme Court confirmation battles, Biden did more than champion civil liberties. He developed an uncanny knack for making them politically palatable to Middle America. In fact, during the Robert Bork and Clarence Thomas hearings, he shepherded a new and expansive conception of privacy into public discourse. This gift for marketing civil liberties won't just serve Obama well as he rebuts Republican attacks during the campaign; if the ticket prevails, Biden's instincts will help guide the selection of judges and the challenging task of reconstructing civil liberties after the assault of the last eight years.

In his autobiography, Promises to Keep, Biden argues that he derived his approach to government from his working-class, Catholic upbringing in the 1950s. His father, who managed a car dealership, lectured him at the dinner table about the horrors of the Holocaust and once quit a job when he saw the boss, at an office Christmas party, throw silver dollars on the floor to watch his employees scramble. "The one thing my mother could not stand was meanness," Biden writes. "She once shipped my brother off with instructions to bloody the nose of a kid who was picking on smaller kids. ... Religious figures and authority figures got no exemption. They abuse their power, you bloody their nose." (In an autobiographical video, Obama told the Democratic Convention that his mother taught him a similar lesson.)

This visceral distaste for abuses of power has undergirded his passionate defense of the right to privacy. Call it the blue-collar view of civil liberties: You defend the little guy against the bullying intrusions of government.

During Robert Bork's Supreme Court confirmation hearings in 1987, Biden's distinctive view of civil liberties set him on a collision course with liberal interest groups. (I worked for Biden as an intern on the Judiciary Committee during the Bork fight.) Biden always had an ambivalent relationship with these groups because of his deviations from liberal orthodoxy: He had attacked busing as a "liberal train wreck" and earned the distrust of women's groups with his middle-of-the-road position on choice, voting to ban so-called "partial-birth" abortions even as he opposed constitutional amendments to ban abortion.

A broad swath of the left wanted to use the Bork hearings as the stage for an apocalyptic showdown over abortion. "We're going to wage an all-out frontal assault like you've never seen before on this nominee," promised Kate Michelman of the National Abortion Rights Action League. In an early meeting over Bork, Biden told the groups, "If I lead this fight, it will not be a single-issue campaign." (This pledge was promptly leaked to newspapers, infuriating the senator and increasing his mistrust of the groups.)

Biden made it clear that he was less interested in abortion than in the right of privacy, recognized in Griswold v. Connecticut, which protected a married couple's right to use contraception and reaffirmed the right to resist mandatory sterilization. "Look, I don't think Roe is great constitutional law; but, if this administration is trying to put someone on the Court just to reverse that decision, they're going to tear this country apart," Biden told his academic advisers, as Mark Gitenstein, Biden's chief counsel at the time, writes in his account of the Bork hearings. "But, to tell you the truth, what concerns me more is what you fellas are saying about his view on the right to privacy. It really concerns me more than abortion."

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