In The New Republic, Jeffrey Rosen declares that Joe Biden is a great champion for “civil liberties” and “the little guy” (I’ll omit the obvious pro-life riposte). Biden, Rosen says, will help with “the challenging task of reconstructing civil liberties after the assault of the last eight years.” Normally, when people write about the alleged assault on civil liberties, they have in mind the Bush administration’s anti-terror policies. But the bulk of Rosen’s article is given over to celebrating Biden’s role in the rejection of Robert Bork’s nomination to the Supreme Court in 1987.
In that battle, “privacy” meant rights to procure abortion and contraception. A lot of the Democratic rhetoric concerned contraception, since Bork thought that there is no constitutional right to it. But this was always a phony issue. “Biden’s great insight was that Bork misjudged the attitudes of middle-class Americans toward sexual freedom,” writes Rosen. But if the vast majority of Americans supported the legal availability of contraception, as was the case, then why was it important that judges be around to strike down laws restricting it? Such laws were in no danger of passing. In practice, what was really at stake was the nearly-unrestricted right to abortion that the Supreme Court had invented in Roe—a right that Biden, at least at the time, was willing to admit was hard to find in the actual Constitution. So Biden whipped up hysteria about a phony issue in order to defend the indefensible, and now Rosen is congratulating him for it.