Biden’s Pride in Ideological Litmus Tests

Call it a gaffe or a moment of unusual frankness, but at the end of last night’s VP debate, Joe Biden admitted that he is proud of applying an ideological litmus test to judicial nominees. Here’s part of the exchange with moderator Gwen Ifill:

IFILL: Can you think of a single issue, policy issue, in which you were forced to change a long-held view in order to accommodate changed circumstances?

BIDEN: Yes, I can. When I got to the United States Senate and went on the Judiciary Committee as a young lawyer, I was of the view … that the only thing that mattered was whether or not a nominee appointed, suggested by the president had a judicial temperament, had not committed a crime of moral turpitude, and was – had been a good student. … [I]t took about five years for me to realize that the ideology of that judge makes a big difference. That's why I led the fight against Judge Bork.

It’s nice to know that Sen. Biden started his Senate career without a politicized view of the Senate’s role in the selection of judges. But the pride he expressed last night in the use of ideological litmus tests should come as no surprise given that

1) As Chairman of the Senate Judiciary Committee during the hearings for Supreme Court nominee Robert Bork, Biden pioneered the use of ideology – not to mention the use of the politics of personal destruction – as a basis for opposing nominees.

2) Biden’s boss has also been surprisingly open about his view of judges as political actors rather than impartial enforcers of the law. Of course, Barack Obama – lacking Biden’s foot-in-mouth disease – phrased it in more euphemistic terms:

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

Sounds lovely, but it’s just code for “judges who will favor the outcomes preferred by liberals.” If you doubt that, ask yourself whether President Obama would select a nominee with empathy for unborn babies or for poor white kids denied college admission because of affirmative action policies.

3) Sen. Biden’s party has become increasingly blatant about its preference for ideological litmus tests. Shortly after Sen. Jim Jeffords’s defection put Democrats in control of the Senate, the Judiciary Committee held hearings entitled “Judicial Nominations 2001: Should Ideology Matter?” Democrats answered in the affirmative. Even the liberal Salon.com described the hearings as intended to “make sure that [the coming rough road for judicial nominees] was clear to the administration – and perhaps to create some political cover for when the time comes to oppose would-be judges.”

Finally, we were struck by the strangeness – bordering on inappropriateness – of Sen. Biden’s approach to Ifill’s question. Consider that Biden’s chosen example of his intellectual growth and flexibility involved learning to be more ideological and partisan and to engage in the politics of personal destruction. We doubt that’s what Gwen Ifill had in mind.