This article first appeared in the St. Louis Beacon: August 25, 2008 - In the years that I covered the Judiciary Committee for the St. Louis Post-Dispatch, I saw Biden preside over controversial hearings about the nation's civil rights policy and the fitness of Anthony M. Kennedy, David H. Souter and Clarence Thomas to sit on the U.S. Supreme Court.
Like others on the committee, Biden had a tendency to deliver paragraph after paragraph of remarks whenever it was his turn to ask a question. He almost always spoke in down-to-earth, unpretentious language. He worked well across the aisle with everyone from the late Sen. Strom Thurmond to Missouri's Sen. John C. Danforth.
When supporters of Clarence Thomas for the Supreme Court released an attack ad criticizing Biden for plagiarism, Sen. Danforth criticized the ad as "sleazy" and said he knew Biden would be fair to Thomas because "Biden is known for being judicious." A few years earlier, Danforth had persuaded Biden to hold a prompt hearing for Thomas' elevation to a federal appeals court judgeship even though Thomas opponents had wanted more time to make their case against him.
During the first round of hearings on Thomas' Supreme Court nomination, Biden was one of the closest questioners. He told Thomas his answers were examples of "sophistry," and "tortuous logic" that amounted to an "unartful dodge" that did not "jibe" with his record. Still Biden told Thomas he would be confirmed, although he reopened the hearings after the Anita Hill allegations.
Sen. Biden didn't always have his law quite straight. During one confirmation fight, I wrote that the hearing threatened to turn into a "Saturday Night Live parody" as Biden and Sen. Carol Moseley-Braun "misstated court rulings." During another I noted the long-winded, questions from Biden and Sen. Alan Simpon.
Biden changed his positions from time to time. He initially said he was leaning against Souter's confirmation, but then voted for him.
Biden has left no doubt that he falls into the "living Constitution" crowd, believing that the Constitution is a living, breathing document that evolves with changing circumstances. Here's a statement of his view from a hearing on the confirmation of Anthony M. Kennedy to the court. The remarks were made just after Biden had chaired the hearing that led to the defeat of Judge Robert Bork. Biden said to Kennedy:
"I will ask you questions intended to determine whether you view the Constitution as a narrow code of enumerated rights. To me, the idea of unenumerated rights expresses a larger truth: a truth to which I believe the President alluded when he introduced you — that Americans have certain rights not because the government gives them or because the Constitution specifically names them, but because we exist, as children of God; that our rights can expand with America's proud and evolving heritage of liberty, a heritage founded on a Constitution that is, in the words of Justice Harlan, a 'living thing.'
"I will ask you questions about the nature of what you have called our 'unwritten constitution,' which restrains the exercise of power among all branches of government, and about how the doctrine of precedent restrains the exercise of power by the Supreme Court in particular."