Joe Biden said during a campaign stop in Iowa that he would appoint justices to the Supreme Court who view the Constitution as a “living document” rather than a text to be strictly interpreted.
The former vice president revealed that he favors judges who acknowledge that there are constitutional rights “not mentioned by name in the Constitution” and expressed his view that the composition of the court should reflect the diversity of the country as a whole, The Washington Times reported. Biden also said that he would work to make sure that there are at least five women on the Supreme Court.
“The people that I would appoint to the Court, are people who have a view of the Constitution as a living document, not as a state document,” he said.
The Constitution as “living document”
Currently, there are three women on the Supreme Court: Justices Ruth Bader Ginsburg (nominated by President Clinton), Elena Kagan (nominated by Barack Obama), and Sonia Sotomayor (also nominated by Obama). Biden said that he would nominate more women with “living document” views to the Supreme Court, explaining that he would select justices who acknowledge that “there are unenumerated rights” that are “not mentioned by name in the Constitution.”
As for whom Biden has in mind, Biden pointed to Kagan and Ginsburg as examples of his ideal Supreme Court justices, adding that he wouldn’t be happy until half the Supreme Court consisted of women. He also said earlier in the talk that he would he would nominate Barack Obama to the Supreme Court “if he’d take it.”
“And, by the way, I’ve said years ago that I’ll be satisfied when at least half the court represents the country and are women,” he said.
Biden has often touted his support for legislation to advance women’s rights, but according to CNBC, he has come under scrutiny in recent months for allegedly inappropriate touching of women and girls as well as his longstanding support of the Hyde Amendment that blocks federal funding for abortions — which he recanted last year under pressure from progressives. He has also been criticized for his treatment of law professor Anita Hill when he presided over Clarence Thomas’s confirmation hearing in the 1990s.
Revisits battle over Bork
Conservatives have long said that the “living document” philosophy invents rights that are not in the Constitution — like the right to an abortion — and has also been used to justify restrictions on rights that actually are in the Constitution — like the right to bear arms — on the theory that the Constitution needs to “evolve” to stay relevant. Biden explained how in his view, the “right to privacy” protects additional rights that are not listed in the Constitution itself, alluding to the focus on privacy considerations found in the Roe v. Wade decision.
Biden said that his constitutional philosophy led him to oppose SCOTUS nominee Robert Bork in 1987, who he said was a “brilliant guy,” despite his strict interpretation of the Constitution.
“I argued and continued to argue, and the bulk of academia agrees with this now, is that if in fact there is a right to privacy in the Constitution — it’s not mentioned, it’s the Ninth Amendment, there are a number of rights in the Constitution — it’s also there are a number of other rights that exist that relate to how you view whether or not all the amendments taken together in the the constitutional body actually protects people in their privacy,” he said.
As chairman of the Senate Judiciary Committee, Biden led the push against Bork’s confirmation, which was rejected after what conservatives have long said was a partisan smear campaign. Senate Democrats portrayed Bork, whose last name became a synonym for the act of defaming political appointees, as a deeply reactionary bigot who, in the words of the late Sen. Ted Kennedy, wanted to usher in a country “in which women would be forced into back-alley abortions” and “blacks would sit at segregated lunch counters.”
Clearly Biden would appoint liberals who see the Constitution as a supporting document for pre-existing progressive dogmas, rather than a set of strict limitations on the proper authority of government. Between that and his comments on a prospective Obama nomination to the high court, there’s no doubt that a Biden presidency would be a disaster for the Constitution.