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Biden to Help Pick Judges?:

Jeff Rosen writes in the New Republic that if Obama wins, "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." Even if one accepted Rosen's underlying ideological (and pro-Biden) premises--which I don't (isn't Biden the one who attacked Bork for not believing in unenumerated rights, and then attacked Thomas a few years later for exactly the opposite reason?)--this seems to be wishful thinking on Rosen's part. I'm happy to be corrected if I'm wrong, but the Vice-President has no obvious constitutional or political role to play in selecting judges, and I don't recall the Vice-President ever, in fact, playing a significant role (or any role) in selecting federal judges. It's not clear to me why Biden would be the first. Sure, he has tons of relevant experience, but it's not like Obama, a former law school lecturer, can't figure out how to run the judicial selection process without bringing his V.P in.

Hat tip: Instapundit.

UPDATE: Just to be clear, it's not completely outside the realm of possibility that Obama would give Biden some significant role in judicial selection. However, it would be against historical practice, and I haven't seen any evidence, including from Rosen, that Obama would in fact do so. Rosen may (or may not) be right that it would a good idea for Obama to consult Biden, but that's very different from suggesting that such consultation is a foregone conclusion.

FURTHER UPDATE: A reader points out that Dick Cheney was apparently intimately involved in choosing Chief Justice Rehnquist's successor.

iambatman:
Yeah, it's not like the president ever asks the VP's advice.
9.10.2008 10:52pm
Old33 (mail):
Biden's been on the Senate Judiciary Committee for the last 25+ years. In that time, he's met (or at least attended a hearing on) every single Article III appointee.

If the pathway to SCOTUS is, of late, through the Circuit Courts, Sen. Biden would be uniquely qualified to give his personal input, having already met and sifted through every single likely candidate.
9.10.2008 10:58pm
Oren:
Biden attacked Thomas for believing too strongly in unenumerated rights?!
9.10.2008 11:05pm
corneille1640 (mail):
Might the vice president, as president of the senate, be able to exercise some discretion in parliamentary procedures that may make it easier (or, theoretically, harder, in the unlikely event that a vice president doesn't like the president's nominee) for a given nominee to go through?
9.10.2008 11:05pm
DavidBernstein (mail):
LEISURE &ARTS -- Bookshelf:
The Father of Natural Rights

WALL STREET JOURNAL (J) 01/05/95 By Steven J. Eagle

The last time most Americans were asked to think about "natural rights" was when Sen. Joseph Biden (Democrat from Delaware) browbeat 1991 Supreme Court nominee Clarence Thomas for believing in them too much. Yet four years before Mr. Biden had harangued Robert Bork for not believing in them enough. Such confusion -- inspired by politics more than political philosophy -- is especially lamentable since much of our national debate about constitutional rights is based on the concept of natural law and its role in regulating governmental power.
9.10.2008 11:11pm
Mark Field (mail):
Wait a minute - natural rights are not the same thing as unenumerated rights. There's some overlap, surely, but the two sets are not identical.

Thomas, as I understand it, believes in natural right, not (or maybe also) natural rights. There's a difference there also.

I think you need to clarify this.
9.10.2008 11:15pm
DavidBernstein (mail):
Surely Biden didn't attack Thomas for believing in natural rights that are explicitly protected in the Constitution! And he certainly questioned Thomas about his alleged affinity for Stephen Macedo's writings, it was I believe his first question.
9.10.2008 11:18pm
Hoosier:
Odd.


I recall the Thomas/Natural Rights hubbub. I was studying at Notre Dame at the time (back when it was still Catholic) and it got big play, for rather obvious reasons.


I'm not a believer in natural rights. Just don't think that they exist. But the hostility toward the idea of natural rights seems often to come from the very same people who advocate for (public) international law and human rights. I can't make out what those sorts of norms are supposed to be if they aren't a form of "natural law."

Thomas, at least, has a coherent philosophical framework for his belief in NL, including ontology and epistemology. Without that, however, what is NL aside from a preference or intuition? I doan geddit.
9.10.2008 11:19pm
volokh groupie:
well you can only hope specter and hatch give biden's favorite nominees the same treatment biden gave Thomas and other judges he disagreed with

now sen. leahy---there's a guy who i'd give more deference to
9.10.2008 11:25pm
lpc (mail):
And if I were former Harvard Law Review EIC and U. Chi. law prof Obama, why would I think that Biden, who barely graduated Syracuse, has better "instincts"?
9.10.2008 11:26pm
trad and anon:
I'm happy to be corrected if I'm wrong, but the Vice-President has no obvious constitutional or political role to play in selecting judges, and I don't recall the Vice-President ever, in fact, playing a significant role (or any role) in selecting federal judges. It's not clear to me why Biden would be the first. Sure, he has tons of relevant experience, but it's not like Obama, a former law school lecturer, can't figure out how to run the judicial selection process without bringing his V.P in.
Aside from breaking Senate ties, the Vice President's only obvious constitutional or political role is to sit around until the President keels over. Otherwise they play whatever role in the administration the President wants them to play. And when your VP used to be chair of the Judiciary Committee it makes sense to put him in charge of selecting judges. It's not like the President is going to pick every District Court appointee personally.

Obama is going to "figure out" how to run the judicial selection process the way the President does everything else: by appointing someone he trusts to make the day-to-day decisions, and to present him with the options when there's a major decision that calls for his personal involvement.
9.10.2008 11:28pm
Anonymous #000:
I can't make out what those sorts of norms are supposed to be if they aren't a form of "natural law."

government-granted privileges
9.10.2008 11:29pm
Nunzio:
"reconstructing civil liberties"?

How about letting people decide for themselves on social issues that the Constitution doesn't address?
9.10.2008 11:47pm
DavidBernstein (mail):
And when your VP used to be chair of the Judiciary Committee it makes sense to put him in charge of selecting judges. It's not like the President is going to pick every District Court appointee personally.

Obama is going to "figure out" how to run the judicial selection process the way the President does everything else: by appointing someone he trusts to make the day-to-day decisions, and to present him with the options when there's a major decision that calls for his personal involvement.
How do we know that Obama trusts Biden? And even if he does, putting Biden in charge of judges would be giving a LOT of power to someone the president can't fire.
9.10.2008 11:50pm
Dilan Esper (mail) (www):
Wait a minute - natural rights are not the same thing as unenumerated rights. There's some overlap, surely, but the two sets are not identical.

It's worse than that. Thomas was praising a conception of natural law that basically provided that the Constitution enacted conservative Catholic / conservative Christian theology. In other words, the OPPOSITE of the unenumerated rights tradition from Griswold and Roe that recognized women's rights to do things that conservative Christians don't approve of.

I have my criticisms of both approaches, but it's not surprising that someone who believes in Griswold and Roe isn't going to think much of Louis Lehrman.
9.10.2008 11:51pm
Constantin:
"Letting Biden have input on judicial appointments" is one of those rare proposals that most supporters of both presidential candidates probably are against. As a GOP voter I'd rather take my chances with Obama. And on the Democratic side, Biden's been resoundingly rejected, twice now, as the guy who gets to pick.
9.10.2008 11:51pm
barney the liberal purple dinosaur:
David - surely you're not going to start complaining about a president ceding too much power to his veep at this late date. 2002 would've been more timely, no?
9.10.2008 11:58pm
corneille1640 (mail):

How do we know that Obama trusts Biden? And even if he does, putting Biden in charge of judges would be giving a LOT of power to someone the president can't fire.

We don't know, but it seems to me that the poster you were responding to was merely trying to point out that it's not implausible that Obama might put Biden in charge of picking judicial nominees, at least that's how I interpreted that comment.

And you're right, Obama wouldn't be able fire Biden, but if, for example, doesn't like the job Biden is doing, he can relieve Biden of the job (of picking judicial nominees) or refuse to nominate whomever Biden suggests.
9.11.2008 12:01am
DavidBernstein (mail):
Here's a transcript.
http://people.virginia.edu/~ybf2u/Thomas-Hill/0910a21.html

You can see that Biden is, in fact, attacking Thomas for allegedly believing that courts should invalidate laws that violate unenumerated rights.
9.11.2008 12:02am
Oren:

I can't make out what those sorts of norms are supposed to be if they aren't a form of "natural law."

I thought they were self-evident.

DB, thanks for the reference and the pointer towards Macedo which, even in the brief time I've had to read his works, illuminates quite a bit about Thomas that was, well, perplexing.

Dilan (not out of character) has quite exaggerated what Macedo has to say. See, e.g., Stephen Macedo, "Against the Old Sexual Morality of the New Natural Law" in Natural Law, Liberalism, and Morality referenced in this GSU Thesis. Macedo argues against a legitimate government interest in "discouraging" homosexuality while Thomas signed onto Scalia's dissent arguing that it can even be criminalized (something that Finnis, another natural-rights scholar that Macedo debated in that book, didn't even advocate).

Very interesting stuff!
9.11.2008 12:02am
DavidBernstein (mail):
I didn't have a blog in 2002. Anyway, the president COULD put the v.p. in charge of picking judges, or at least consult him on important nominations; we just don't have any evidence beyond Rosen's say-so that Obama has any intention of doing so, and we have historical practice to the contrary.
9.11.2008 12:03am
trad and anon:
How do we know that Obama trusts Biden? And even if he does, putting Biden in charge of judges would be giving a LOT of power to someone the president can't fire.
Technically, the Vice President can't be fired, but the President can ecide to stop taking his advice. Dick Cheney could report to work tomorrow to find that his office has been moved to the State Department basement.
9.11.2008 12:05am
trad and anon:
We don't know, but it seems to me that the poster you were responding to was merely trying to point out that it's not implausible that Obama might put Biden in charge of picking judicial nominees, at least that's how I interpreted that comment.
Yeah, that was what I was trying to say.
9.11.2008 12:08am
The General:
Biden can advise Obama on how to smear the nominee.
9.11.2008 12:11am
DavidBernstein (mail):
Last comment before I go to sleep: Rosen didn't say that Obama might turn to Biden for advice, or that Biden will be available if Obama wants advice, or that it would be a good idea for Obama to consult Biden. Rather, he wrote that "Biden's instincts will help guide the selection of judges," with no supporting evidence.
9.11.2008 12:13am
jccamp (mail):
I agree with David B in his OP, that Rosen is probably dreaming. I suspect Biden will not be making too many USSC recommendations for Obama. To move a little beyond the OP, Biden has been selected for his pre-election contributions, not for his post-election strengths.
9.11.2008 12:26am
Something Wicked:
I know what you mean, Professor. I keep asking myself why Eisenhower had a Chairman of the Joint Chiefs. Why Kennedy had a Secretary of the Navy.

Slow day at the Conspiracy?
9.11.2008 12:30am
Jerry F:
Who cares? Any Democrat would appoint left-wing judicial activists along the line of Breyer, Souter, Ginsburg, Stevens, or worst. It doesn't matter who is ultimately nominated, a Democrat victory in November means that Roe v. Wade, Lawrence v. Texas, Miranda v. Arizona, Rasul v. Bush, Boumediene v. Bush and all the other cases that made a mockery of the Constitution in the past 40 years are there to stay.
9.11.2008 12:35am
Lev:

Biden to Help Pick Judges?


He'll "help" Obama pick judges, if only because he will believe he is the president de facto, having been picked as the antidote to Obama's lack of experience.

On the other side, Biden will "help" McCain, because McCain will "cross the aisle" to compromise and "work with" his Democratic friends.
9.11.2008 12:36am
ReaderY:
I don't see the big story here. As a Washington insider presumably Biden will be giving Obama advice from time to time if elected, and as a former judiciary committee chair judge selection would be a logical thing to advise about. Obama and Biden likely have sufficiently similar tastes that the advice might well be well-received. Both have made perfectly clear that they prefer liberal judges, nobody should be the least bit surprised by that.
9.11.2008 12:40am
Mark Field (mail):

You can see that Biden is, in fact, attacking Thomas for allegedly believing that courts should invalidate laws that violate unenumerated rights.


I read that transcript and didn't see Biden "attack" Thomas. I did see him question Thomas, and I saw Thomas give evasive and disingenuous answers.

Biden may very well have been concerned that Thomas would support changing the then-current standards for how we handle property rights claims, but he didn't ever say that this was wrong. He just wanted to know what Thomas's position was.
9.11.2008 1:30am
Arkady:
Uh, what's the big deal?


I'm happy to be corrected if I'm wrong, but the Vice-President has no obvious constitutional or political role to play in selecting judges


Let's rephrase that:


I'm happy to be corrected if I'm wrong, but the Vice-President has law professors have no obvious constitutional or political role to play in selecting judges
9.11.2008 8:22am
Big E:
I would rather President Obama take recommendations from the Senate. It is after all advice and consent, not just consent.
9.11.2008 8:46am
Adam B. (www):
I don't recall any constitutional or historical precedent for POTUS to cede major swaths of national security decisions to the Vice President either ... until the past seven and a half years.
9.11.2008 9:25am
Anderson (mail):
How do we know that Obama trusts Biden?

Gosh, I have no idea. Had the law not compelled Obama to pick Biden to be his RUNNING MATE, I'm sure that Obama would have looked elsewhere.

I don't recall the Vice-President ever, in fact, playing a significant role (or any role) in selecting federal judges

Google recalls it for you:

In May 2005, a small group of the president's senior advisers gathered to weigh a historic choice: who should succeed an ailing William H. Rehnquist as chief justice of the United States.

The meeting wasn't held at the White House or the Justice Department. And the highest-ranking official in the room wasn't the attorney general, the White House chief of staff, the White House counsel or the president's chief political adviser, although they were all there.

It was Vice President Cheney, and it was to an unpretentious room off the vice president's quarters that potential candidates were summoned for interviews.

The handful of candidates who survived a grilling of more than two hours by the Cheney-led selection committee would go on to what one participant described as a much shorter and "far more relaxed" interview with the president. President Bush seemed more interested in personal matters than in case law. By contrast, Cheney pressed for information that would shed light on the candidates' legal philosophies, demonstrating a sophisticated knowledge of doctrine and, without crossing the line by asking about specific cases, leaving a clear impression of the constitutional issue he considered paramount.


Follow the link -- there's more.
9.11.2008 10:07am
JR Lentini (mail):
I think the rationale is pretty obvious: Biden knows the Senate (and its members) better than almost any man alive. With decades of experience in the confirmations process, Biden probably knows a hell of a lot better than anyone on either ticket what is and is not within the realm of possibility (could Lawrence Lessig be confirmed? Could Neal Katyal? anyone remotely to the left of Orin Kerr? etc.). I think Obama plans to actually have Biden work the Senate in a way that, in recent years, is unusual for Vice-Presidents.

Like LBJ on steroids.
9.11.2008 10:49am
Anderson (mail):
I think Obama plans to actually have Biden work the Senate in a way that, in recent years, is unusual for Vice-Presidents.

Very astute, and I hope that you're right (and that we have the opportunity to find out).

Bush managed to offend even Republicans in Congress (not that it stopped them from fawning upon him). The Dems are too diverse a party for Obama to rely upon party loyalty without some old-fashioned politics.
9.11.2008 10:52am
DrGrishka (mail):
Well, Jan Crawford Greenberg reported that Cheney had a pertty significant role in vetting Bush's SCOTUS picks. Apparetnly, it was Cheney, et.al., who recommendation of Alito stated that he "hasn't written a 'wrong' opinion ever." (This may not be an exact quite, but something to that effect).
9.11.2008 11:28am
CJColucci:
What's the story here? A possible President might be inclined to consult with his VP-to-be on a matter where the VP-to-be has lots of relevant experience. He might even institutionalize the process. So what?
9.11.2008 11:48am
Ben P (mail):

I think Obama plans to actually have Biden work the Senate in a way that, in recent years, is unusual for Vice-Presidents.


I can't believe we got this far into the threat without someone hitting on the most likely explanation on the meaning of Obama consulting Biden on picks.

Biden's relavant experience is not him having a law degree, Biden's relevant experience is him being in the legislature for two decades, and him running the commitee he did.

I think it's uncontestable that there are few individuals that could be considered more qualified than Biden (as would probably be true for any influential long sitting senator, including McCain in this case) at the process of working inside the Senate both before and during the nominations to ensure that the nomination process goes smoothly.

If you want to get into it, I think this has actually been one of the major failures of the Bush presidency. Ideology certainly plays a role, but he and his advisors have been lacking in working to find conservative judges that are actually likely to be nominated rather than renominating the same people and attempting to force political showdowns on the matter.
9.11.2008 11:57am
DavidBernstein (mail):
Don't have time now, but will add the link to Cheney.

As for trust, I don't think Reagan "trusted" Bush, I doubt Dole trusted Kemp, and JFK certainly didn't trust LBJ. Veeps are picked for political reasons, not necessarily because the president trusts them.
9.11.2008 1:30pm
The Unbeliever:
Just to be clear, it's not completely outside the realm of possibility that Obama would give Biden some significant role in judicial selection. However, it would be against historical practice,
Well, as Obama is so fond of pointing out, his campaign is all about making history and "historic moments".
9.11.2008 2:23pm
Dilan Esper (mail) (www):
Dilan (not out of character) has quite exaggerated what Macedo has to say. See, e.g., Stephen Macedo, "Against the Old Sexual Morality of the New Natural Law" in Natural Law, Liberalism, and Morality referenced in this GSU Thesis. Macedo argues against a legitimate government interest in "discouraging" homosexuality while Thomas signed onto Scalia's dissent arguing that it can even be criminalized (something that Finnis, another natural-rights scholar that Macedo debated in that book, didn't even advocate).

The problem with this analysis is that Thomas' jurisprudence has, in fact, been broadly consistent with the broader conceptions of natural law theorizing that liberals were concerned about.

Liberals made 3 claims about Thomas: (1) that he was a sexual harasser; (2) that he was an intellectual lightweight; and (3) that he was a right wing extremist.

(1) is unknowable. (2) is false, and conservatives have every right to scream and yell when it still gets thrown around. (3), however, is completely true, he should have been Borked, and Biden's role in trying to Bork him is a point in his favor, not against.
9.11.2008 3:15pm
Opher Banarie (mail) (www):
corneille1640:

Might the vice president, as president of the senate, be able to exercise some discretion in parliamentary procedures...

From the US Senate website:

According to Article 1, section 3 of the U.S. Constitution, "The Vice President of the United States shall be President of the Senate but shall have no Vote, unless they be equally divided." Other than being prepared to succeed to the presidency if needed, the vice president's only constitutional role in government is to preside over the Senate. Although vice presidents regularly presided in the Senate during the 19th century and through much of the early 20th century, today vice presidents preside only on ceremonial occasions and when their vote is needed to break a tie.
It goes on to discuss the president pro tempore who presides in the absence of the VP.
So, I think the answer to your suggestion is "no".
9.11.2008 3:37pm
Nunzio:
Dilan,

I agree with your 3 points re Thomas. But Obama recently said Thomas shouldn't have been appointed for reason (2) (the intellectual lightweight).

While Biden may have been right about Thomas, he (and Obama) were wrong to oppose Roberts. It showed them to be highly partisan and to the left of their party. If Obama doesn't think Roberts was qualified to replace Rehnquist, I'm very skeptical as to who he would nominate, especially if Biden is going to help him out.
9.11.2008 5:28pm
Oren:
Nunzio, I think the Roberts thing was a bit of astute game-theoretic politicking. Since he was assured of an easy confirmation, the Dems could only benefit by showing opposition to his nomination. It sends the message "this guy is far enough right to generate some opposition, but overall we will allow him to be nominated". If they let him be confirmed totally unopposed, the message is "this guy generated no opposition at all, so next time you can nominate someone even further to the right".

I would expect (and support) the GOP to the do the same for Obama's nominees -- it is a natural way of the opposition to properly signal where their ideological limits are. I'm for any positive step towards nominating more in the Souter/Kennedy/Roberts mold and fewer Ginsburgs and Scalias.
9.11.2008 10:46pm
Dilan Esper (mail) (www):
I should add to Oren's valid point that the politics of abortion have also hardened since Thomas. For instance, I wouldn't expect that a Ruth Ginsburg / Steven Breyer scenario would unfold if President Obama gets a Supreme Court pick-- rather, I would suspect that Republicans would basically oppose the selection.

Roberts is very smart, he's not Thomas, but he's still very conservative and is a likely vote against Roe. That set of attributes is probably going to generate a lot of opposition from Democrats in the future. The days of relatively easy confirmations for a Scalia or a Ginsburg are probably gone.
9.12.2008 1:14pm