Joe Biden’s Terrible Supreme Court Record

One of the most common arguments that we hear from non-progressive liberals who attempt to shame actual progressives into voting for Joe Biden, now that Bernie Sanders has suspended his presidential campaign, is that we need to be mindful of the Supreme Court. Some of the more honest members of the “Vote Blue No Matter Who” crowd will acknowledge Biden’s multitude of disastrous faults, which I have previously outlined, but they insist that we still ought to support the corporatist neo-liberal Democrat because President Donald Trump, if re-elected, would be able to nominate hyper-conservative judges to replace those like Justice Ruth Bader Ginsberg, who is 87 years old.

While I agree that the Supreme Court is an important consideration for progressives when deciding who to support this November (either the presumptive nominee, the eventual Green Party candidate, writing-in Bernie Sanders’ name, or leaving the top of the ballot totally blank), it is one of many issues to consider. For example, would a milquetoast and unsuccessful four or eight years of Biden be worth a Republican, perhaps someone even worse than Trump, replacing him in 2024 or 2028? Can we really trust an individual with almost 50 years of poor policy decisions and advocacy for horrendous legislation to be our next president? Can we really justify voting for someone with a terrible sense of temperament, who has sexually harassed women and children (and even sexually assaulted a former staffer), who is suffering from a clear cognitive decline, and who has promulgated racism throughout his career?

Beyond all of these obvious disqualifiers, though, there is this assumption among Democrats that a President Biden would select acceptable Supreme Court nominees. A review of his Senatorial record and policy positions, however, completely shatters this unfounded assumption.

Since Biden was elected to the United States Senate in the early 1970s, he has had the opportunity to vote on a whole host of nominees. In some cases, he exercised good judgement, particularly in his opposition to President Ronald Reagan’s nomination of Robert Bork, but in many other cases, his voting record is utterly terrible.

Consider the nomination of Sandra Day O’Connor, for example, by Reagan in 1981. Apart from the issue of abortion, O’Connor was clearly a conservative nominee. Despite this, though, Biden joined his Senate colleagues and “enthusiastically” voted to place her on the Supreme Court. Antonin Scalia, who was also nominated by Reagan, albeit even more conservative than O’Connor, also saw support from Biden in 1986, which he later regretted.

Of course, we know the negative impact that conservatives have had on the Supreme Court, ranging from Bush v. Gore, which handed George W. Bush the presidency, to the Citizens United case, which further expanded the influence of big money in politics, to the vast array of decisions that have increased gun proliferation, chipped away at abortion rights, and harmed the most vulnerable members of society, and by voting for conservative Supreme Court nominees, Biden has been culpable in the right-wing swing that our judicial system has experienced over the last several decades.

We should also consider the nomination of Clarence Thomas to the Supreme Court. Biden was the chairman of the Judiciary Committee back in 1991, when his Senate committee was responsible for considering the sexual harassment allegations that Anita Hill levied at Thomas. Using his influence, Biden decided against allowing the committee to conduct a full investigation into Hill’s claims, instead opting for quicker hearings. He also refused to allow public testimony from witnesses who could support Hill’s accusations, and he made no attempt to shield Hill from the sexist attacks perpetuated by Republican members of the committee. Finally, Biden allowed Thomas to testify before and after Hill, whereby giving him the advantage of having the first and last words. Given how Biden has misogynistically treated other women, the way he conducted these hearings are not at all surprising.

While Biden ultimately did not vote for Thomas, the hearings were a complete and utter disgrace and further highlights his terrible Supreme Court record. No amount of milquetoast apologies will undo the damage that his “leadership” did to the Supreme Court and for victims of sexual harassment.


As president, who would Biden select as potential Supreme Court nominees? As of this writing, the only person who he has publicly touted was Merrick Garland, the individual President Barack Obama originally nominated as a compromise between neo-liberal Democrats and regressive Republicans. Garland has a conservative record of his own, ranging from issues from criminal justice to not allowing Guantanamo Bay prisoners to challenge their living conditions.

Is this the best we got? There are a multitude of potential nominees who hold progressive judicial and legal frameworks, and the fact that Biden suggested the re-nomination of someone with glaring flaws inspires little confidence in his future nominations.

Of course, we should ask ourselves a fundamental question: why would Biden nominate a progressive candidate to the Supreme Court in the first place? After all, Biden epitomizes the Democratic Party’s right-wing swing and corporatist, neo-liberal transformation during his long tenure in public office. Unless Biden undertook a radical personal transformation, his nominations would likely reflect his own troublesome worldview.

So I ask my non-progressive Democratic friends: what makes you think we’ll vote for Joe Biden, despite his multitude of glaring flaws, due to the Supreme Court? Are you not aware that he played a hand in crafting the current conservative majority? Did you forget about the way Biden treated Anita Hill? And who, exactly, would Biden nominate that would inspire confidence in him from progressives?

Without addressing Biden’s disastrous record on issues surrounding the Supreme Court, or any of his other terrible votes, behaviors, or policy positions, Democrats have no right to vote-shame progressives into supporting a candidate who fundamentally does not share our values. They tried to do this in 2016 prior to Hillary Clinton’s embarrassing loss to Donald Trump, and their failure to learn from history this time around is clearly palpable.

Appeals to our desire for a progressive Supreme Court will not work, not just because the presidency encompasses far more than judicial nominations, but also because Biden has a terrible record on issues relating to the Supreme Court, so we don’t trust him with filling Supreme Court vacancies anyway.

This article originally appeared on my Medium blog

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