The recent surge of elite media interest in Joe Biden overlooks two crucial facts. The first is that he's never had a national constituency, failing badly on both presidential runs. Second is that he's clearly at odds with with the activist energy out there.

But there are more fundamental problems, buried in Biden's past. If one looks back to his role in the Senate in the early '90s, one finds him undercutting powerful black women—Anita Hill and Lani Guinier—for "smart" insider reasons that don't look so good today.

Advertisement:

In retrospect, we see a man who failed to grasp key social justice issues when brought before him, the issues of sexual harassment and institutionalized male power in the case of Anita Hill, and the issue of voting rights as a matter of inclusive representation in the case of Lani Guinier. In the elite media accounts of the day, Biden acquitted himself well in both cases, in a difficult situation. But those rushed accounts are more reflective of why the insiders still like Biden so much than they true pictures of history.

Let's start with quick review of the two obvious facts the pundits prefer to ignore. First, Biden's lack of a constituency. In his first presidential run, in 1988, he began by leading the field in fundraising the first quarter of 1987, but withdrew from race in September 1987, long before any ballots were cast, because of a series of character questions kicked off by borrowing lines from British Labor leader Neil Kinnock. (Biden sometimes attributed the lines to Kinnock, but in an instance caught by a Michael Dukakis aide, he did not.)

In his second run, in 2008, he dropped out immediately after the Iowa caucuses, where came it at less than 1 percent. He did manage to impress Barack Obama, who picked him as his running mate, but that selection merely reflects a long-standing Beltway bias: D.C. has always thought much more highly of Biden than the American people have. By picking Biden as his No. 2, Obama strengthened his support with the same establishment he was simultaneously pretending to run against.

Advertisement:

The second crucial fact the Biden hyping overlooks is that he's particularly out of step with all of the activist energy in and around the party right now, which falls into three distinct camps. First are the feminists fighting back against the GOP's war on women (latest front, the fraud-based effort to defund Planned Parenthood), who are largely supporting Hillary Clinton, and have no reason at all to abandon her for Biden. Second are the economic populists supporting Sanders, who have no reason to even think of supporting a long-standing finance sector advocate like Biden, despite the fact that his lawyer and financier backers might think he's a “regular Joe.” Third are the Black Lives Matters activists, who mostly aren't party activists at all, but who are actively pressing all candidates to do more—all in the direction of undoing Biden's substantial legacy of contributing to the mass incarceration of black America. So, put bluntly, there's no hint of a potential constituency out there for Biden, either.

This is not to ignore the existence of some encouraging polling news out there. But Biden's been almost entirely free of any sort of negative press coverage for a very long time. When Hillary Clinton was similarly treated a couple of years ago, her political dominance towered over Biden's modest “good news” today. The fact that folks generally have a good impression of Biden now is no indication at all of any deep commitment to him, but is almost certainly an artifact of how he's been treated by the political class as a whole, which has up to now not said anything against him in a very long time. His popular support was clearly over-estimated both times he ran for president, and there's no reason to think that's not the case once again today.

Biden's Rightward Shift

Advertisement:

What Biden does have going for him is elite media fantasies. He's their idea of what "the people" really want. He may have spent 30-some years representing credit-card companies in the U.S. Senate, but for the elite media, he's a “regular Joe.” A more subtle way that Biden reflects D.C. insider fantasies of what the public wants is the way that he has moved significantly to the right over the years, without any in D.C. appearing to notice it.

The clearest indication of this can be gotten from the DW-Nominate scores compiled from roll call votes by political scientists working with Keith Poole, who maintains the Voteview website, where the data is freely available (full Senate file spreadsheet here). As Poole documented in a 2003 paper, "Changing Minds? Not In Congress!" there is very little ideological change once politicians are elected to Congress. They “die in their ideological boots,” he wrote. “That is, based upon the roll call voting record, once elected to Congress, members adopt an ideological position and maintain that position throughout their careers – once a liberal or a conservative or a moderate, always a liberal or a conservative or a moderate.” There are, of course, exceptions, he noted, but for every one you can point to, “there are hundreds of other Senators who never undergo a conversion experience.”

Advertisement:

Biden never underwent a dramatic conversion, but if one looks at his record over time, the rightward drift is pronounced. He entered the Senate in 1973, before Watergate reached its conclusion, and over the first 14 years—through January 1987, just as the Iran-Contra scandal was exploding, he averaged the 16th most liberal member of the Senate, just slightly more liberal than Vermont Senator Pat Leahy, who took office two years after him. But from then through January 1999, just as the Senate was about to vote on Clinton's impeachment, Biden averaged 30th most liberal—just slightly to the right of the Democratic caucus as a whole, and two slots to the right of West Virginia Senator Jay Rockefeller, while Leahy moved a few slots to the left of where he started.

From that point until he left the Senate to become Obama's vice president in January 2009, Biden moved even farther to the right, averaging out as the 38th most liberal member of the Senate, in the neighborhood of Diane Feinstein and Joe Lieberman. His DW-Nominate score had shifted 10 percent to the right over this time, compared to no shift at all for Ted Kennedy, and 1 percent to the left for John Kerry over roughly similar time periods. Yet, somehow Joe Biden still has the reputation of being a liberal, like them, though he was never as liberal as either of them, even before he began drifting to the right.

As Salon's own Joan Walsh recently wrote, “Many of us love Biden as a liberal hero, especially for having the president’s back these last seven years, and for his courage in coming out for marriage equality even before his boss did.” What this tells us is that the true markers of where people stand ideologically tend to be deeply submerged in D.C.—at least when it comes to the liberal side of things. And this sort of blindness to the basic contours of political thought is one reason Washington has so much enthusiasm for Biden.

Advertisement:

It also tells us that Biden's treatment of Hill and Guinier, discussed below, are part of a broader unacknowledged rightward trend. While Biden may have justified them as fighting back against conservative attacks—and Beltway pundits may repeat such narratives in their sleep—the reality is just the opposite: these actions helped move Biden and the country significantly to the right. Before turning to Hill and Guinier, however, we need to consider Biden's broader record in shifting the Democrats' significantly to the right on criminal justice policy—a record directly at odds with what Black Lives Matter is calling for today.

Helping To Build The Drug War

Jamelle Bouie also wrote a particularly insightful piece recently on Slate, focusing on the damage a presidential run could do to Biden's political legacy. As Bouie pointed out, Biden's involvement in creating the drug war as we know it was substantial, involving a series of laws over a 10-year period:

Advertisement:

In 1984, he worked with Republican Sen. Strom Thurmond and the Reagan administration to craft and pass the Comprehensive Control Act, which enhanced and expanded civil asset forfeiture, and entitled local police departments to a share of captured assets. Critics say this incentivizes abuse, citing countless cases of unfair and unaccountable seizures.... In 1986, Biden co-sponsored the Anti-Drug Abuse Act, which created new mandatory minimum sentences for drugs, including the infamous crack-vesus-cocaine sentencing disparity.... Biden would also play an important role in crafting the 1988 Anti-Drug Abuse Act, which strengthened mandatory minimums for drug possession, enhanced penalties for people who transport drugs, and established the Office of National Drug Control Policy, whose director was christened “drug czar” by Biden. His broadest contribution to crime policy was the Violent Crime Control and Law Enforcement Act, commonly called the 1994 Crime Bill. Written by Biden and signed by President Clinton, it increased funds for police and prisons, fueling a huge expansion of the federal prison population....[I]t also contributed to the rapid growth of militarized police forces that used new federal funds to purchase hundreds of thousands of pieces of military equipment....”

Bouie also quotes from Naomi Murakawa's book, The First Civil Right: How Liberals Built Prison America in which Orin Hatch accused Democrats of "bowing to the liberal wing of the Democratic Party." As Bouie explains:

“Let me define the liberal wing of the Democratic Party,” he said to Sen. Orrin Hatch, “The liberal wing of the Democratic Party is now for 60 new death penalties … the liberal wing of the Democratic Party is for 100,000 cops. The liberal wing of the Democratic Party is for 125,000 new state prison cells.”

That session, Biden was the 35th most liberal member of the Senate—hardly the representative of the liberal wing he held himself out to be. (A mere 10 years earlier, he had been the 11th most liberal, but those days were long gone by 1994.) Still, it's true that House and Senate liberals went along with it, and essentially turned their backs on what was already known about the limits of purely punitive “crime-fighting.” Biden spoke with authority not because he drew on any deep store of knowledge, but because of his leadership position in the Senate and his role in writing the law. He was, in fact, a leader in the neo-liberal redefinition of the Democratic Party, abandoning any real concern for what happens on the ground and what alternatives exist, and re-defining “pragmatism” in terms what “works” in the isolated power-bubble of D.C.

As an example of the outlook, experience, and empirical data that liberals used to stand for in the way of humane crime-fighting, which Biden, with his Beltway maneuvering, didn't have time for, consider the 1994 book, A Rage to Punish: The Unintended Consequences of Mandatory Sentencing, written by Lois Forer, a Philadelphia judge with 16 years experience, who focused on using reparations for damages in dealing with non-violent offenders. As Publishers Weekly noted in its review:

In 1988, she left the bench when ordered to resentence a young black, who had served a six-month term and repaid a $50 robbery, to a mandatory five years.

Forer arranged for an empirical study to be done about the effectiveness of her approach, which was found to significantly reduce the rate of re-offending. But this sort of approach, based on treating criminals not as monsters, but as humans who have made mistakes, was no longer even given a hearing under the leadership of folks like Biden.

Advertisement:

Biden's distorted sense of who should be listened and who shouldn't was, in short, a reflection of the shifting power relations coming to dominate Washington at the time. Previously, Democrats had usually taken seriously what ordinary people had to say. Whatever the eventual outcome might be, they were willing to hear from those on the front lines who might have a very different view of things. But after eight years of Reagan and four more of Bush, Biden was at the forefront of those who thought it far more important to listen and respond to conservative activists inside the Beltway, as shown by his response to Hatch quoted above.

This, then, was the broader legislative record that Biden had built—and was still building—at the time he encountered Anita Hill and Lani Guinier. He was busy moving the Democratic Party to the right on criminal justice policy, and they appeared as very unwelcome reminders, not just of what he was leaving behind, but of the fact that there was also much more to the realm of justice than his narrow focus could encompass. Let's consider each these women in turn, how they were mistreated by elite Washington, and the role Biden played in mistreating them.

Undermining Anita Hill

In 2010, after Clarence Thomas' wife, Ginni, left a bizarre phone message, asking Anita Hill for an apology, and his early 1980s girlfriend, Lillian McEwen broke her 19-year silence, telling the Washington Post about his pornography obsession, Steve Kornacki wrote a damning summary of the evidence against Thomas here at Salon, which he began by specifically pushing back against Maureen Dowd in the New York Times and Richard Cohen:

Advertisement:

But Dowd, Cohen and others miss the point completely: When it comes to the suggestion that Thomas sexually harassed Anita Hill in the 1980s, there’s nothing to litigate and no need to throw up your hands in confusion: He plainly did it and he plainly got away with it. And the fact that he did is plainly relevant now, given that he, his wife and his political allies are still, all these years later, intent on behaving as if they’ve been victimized.

Kornacki went on to cite a wide range evidence, through various different channels, which by now beyond overwhelming, regardless of how deep in denial the establishment punditocracy may be. Evidence he cited included the fact that, “Three Hill friends — Susan Hoerchner, Ellen Wells and John Carr — testified under oath that she had told them about Thomas’ conduct as it happened between 1981 and 1983,” and that another former Thomas employed, Angela Wright, made similar claims, but was not called to testify. In addition, Rose Jourdain, who had worked with Wright, “told committee investigators that Wright had spoken to her while they worked together about their boss’ conduct,” and former Thomas aide Sukari Hardnett, wrote a a letter to the committee telling them “that many black women at the agency felt they were 'an object of special interest' to their boss.” In short, it's not the irresolvable “he said/she said situation” that is has been made out to be; there's an overwhelming preponderance of evidence against Thomas.

But two more things are also now crystal clear in hindsight. First, that there was already overwhelming evidence back at the time of Senate confirmation hearing. Second, that Joe Biden—chair of Judiciary Committee—played a key role in preventing that evidence from being heard, essentially re-victimizing Anita Hill in the process. In fact, Biden's concern with treating Clarence Thomas (but not Anita Hill) “fairly” was cut from precisely the same cloth as his concern in responding to Orin Hatch above. He was thinking in terms of the inside Washington “game,” not in terms of the American people he was supposed to serve.

This is what Hill herself has said, in an interview with Hufflington Post, shortly after the 2013 documentary, Anita: Speaking Truth To Power was released. Hill was asked, “Vice President Biden was there, and he was running the hearings, and you said he did a terrible job of running the hearings. What do you mean by that?” In response, she said:

“I think he did two things that were a disservice to me, that were a disservice, certainly, to the public. This was a public hearing. We were there to inform the public. There were three women who were ready and waiting, and subpoenaed to be giving testimony about similar behavior that they had experienced and witnessed. He failed to call them. There were also experts who could have given real information, as opposed to the misinformation that the Senate was given, who could have given information, and helped the public understand sexual harassment. He failed to call them. Those were two things. I think there were probably more, if I went play-by-play.”

The most significant other witness was Angela Wright, who had a similar experience, but did not claim to have been sexually harassed by Thomas, for a very interesting reason: “I am a very strong-willed person and at no point did I feel intimidated by him,” she told Senate investigators, but she also told them, “I felt from my experience with Clarence Thomas that he was quite capable of doing just what she said."

Advertisement:

Three years after the hearings, Florence George Graves wrote a story, “The Other Woman,” about Wright, her testimony, and how it was buried for the Washington Post. On the last point, Graves provided a very detailed, nuanced account, with a number of contradictory claims. On the one hand, Biden claimed that Wright did not want to testify—but both Wright and her lawyer disputed this—and he claimed that Hill didn't want her to testify either--a claim that one of Hill's lawyers denied. A Biden aide also said Biden could do nothing with 13 senators united against him. But Graves quotes Alan Simpson as being eager to call her. Sen. Paul Simon has no memory of this--but said something else that undermined Biden's excuse: "If any one member of the committee had insisted on calling her, she would have been called."

After a paragraph describing different recollections of the committee meeting in which it was decided not to call Wright, Graves wrote:

Because so much was going on, Simon says, he did not read Angela Wright's testimony until after the hearings. That's when he was "stunned" to learn that Rose Jourdain had corroborated Wright's account. Had he known this when the senators caucused Sunday, "I would have insisted that she be called." Simon says he thinks Wright's account, buttressed by Jourdain's, "would have turned the situation around."

As committee chair, Biden was the man in charge of this whole process. He was the one responsible for making sure that everyone involved had all the relevant information—everything they needed to do their jobs in one of the most important tasks they have as senators: voting to confirm a Supreme Court nominee. Biden failed in his leadership. Instead of leading his committee through an informed deliberative process, he helped to perpetuate a coverup, which put a sexual harasser on the highest court in the land. The precise reasons we will probably never know, but the general reason should be quite clear: Biden cared more about the insider game, not ruffling anyone's feathers, and keeping a good image for himself (treating Thomas “fairly”) than he cared about serving justice, the American people, and Anita Hill, who was falsely presented as an isolated figure accusing Clarence Thomas.

Silencing Lani Guinier

Biden's conduct in Hill/Thomas hearings was not a problem for him inside D.C., or with the elite media. Everything he did wrong was right, according to the warped values that dominate there. The same was true once again, a few years later, when he played a much less publicized role in helping to bury the nomination of Lani Guinier to head the Civil Rights Division of the Department of Justice. Guinier had worked for years as a courtroom litigator for the NAACP Legal Defense and Education Fund, fighting to enforce the Voting Rights Act. She then made the move to academia, where she took a step back from the battles she'd been fighting, and developed a very sensible, but also sophisticated analysis of what the VRA was all about. As Ari Berman, author of Give Us the Ballot, explained when I interviewed him this summer:

Lani after she was civil rights lawyer became a professor at Penn, and she started writing a lot of articles that dealt with that next phase of the voting rights, Basically she argued that the first phase of the Voting Rights Act knocked down the barrier that had prevented African-American and others groups from being able to register to vote. The second phase of the voting rights struggle had knocked down the discriminatory electoral systems that prevented African-American and other minority groups from actually being able to win elected office, and that was the major fight in the '70s and '80s and '90s. And then, Guinier said, there needs to be a new phase, and the new phase has to be giving people a fair share of political power. It's not enough to have someone elected, you actually have to create mechanisms so that they can actually have real power once they're elected.

This is not a radical idea—or if radical (from the Greek for “root”), certainly not in a bad way. The whole point of voting is that people should have the power to help determine the condition of their lives. “Give us the ballot, and we will fill our legislative halls with men of goodwill,” Martin Luther King said in a landmark 1957 speech (audio/transcript). Guinier was not arguing for anything more than King had. Berman added some detail:

For example, say you have a five person's counsel and you elected two African-Americans. Well, if the white majority always voted 3-2 against the African-American members, the African-American members didn't have a lot of power. So that's what Lani was trying to get at.

This was a widespread on-the-ground reality, which Guinier and others like her had repeatedly fought against in court. There were mountains of evidence documenting what she was talking about. But it was profoundly at odds with the rightwing narratives flooding Washington at the time, like the wildly distorted “welfare queen,” a racist trope that was quickly re-purposed to attack Guinier, as Berman described:

Instead of the Congress engaging with her ideas, she was demonized by the right as a "quota queen," and so there was not a serious discussion of the remedies that she was proposing, because people were so concerned that she was going to mandate affirmative action in the electoral sphere. That was really a low point, I think for Congress....

Biden, once again was chair of the Senate Judiciary Committee, which was responsible for voting on her nomination. And once again, he failed in the very same way that he failed both with crime legislation, and with the Hill/Thomas hearings: he grounded his thoughts and actions in the customs, assumptions, and attitudes of Washington, instead of the country that Washington is supposed to represent.

Bill Clinton bore primary responsibility for failing to educate himself and then others on what Guinier's writings and underlying purpose were all about, and for failing to let her speak on her own, when his administration failed to defend her. But Biden was equally responsible for his committee acting on the basis of facts, not wild, unfounded, even racist accusations, and he completely failed in this regard, as reflected in an op-ed by Anthony Lewis:

Professor Guinier was the target of the most effective smear campaign seen in Washington since Joe McCarthy's day. It has persuaded many people that she is a dangerous radical, which she is not. It sent Joe Biden and some of his equally courageous colleagues on the Senate Judiciary Committee looking for a way out of even giving her a hearing to defend herself.

At In These Times, Joel Bleifuss wrote:

Sen. Joseph Biden (D-DE), the obsequious chair of the Senate Judiciary Committee, says Guinier's writings on the subject of democracy cause him "great concern." He wants to know if her scholarly work was just an "academic exercise." Parroting Guinier's critics, Biden put it this way: "If she came here and said, 'Participatory democracy does not work. I believe that it should not work. I believe that we have to change the system,' she should go home."

Guinier has never said nor written any such thing. But reading the press coverage of her nomination, one would not know that. What is it about Guinier that has everyone in such a snit? Guinier, an integrationist, has put forward a prescription for our ailing, racially divided society—participatory democracy. To accomplish this revitalization, Guinier advocates exploring the virtues of proportional representation.

In fact, contra Biden, Guinier's whole career as a voting rights lawyer and law professor had been devoted to making participatory democracy work. She was exactly the opposite of the person Biden took her to be. Guinier advanced models of proportional representation—routinely used in advanced democracies outside the English-speaking world, but also here in America in elections to corporate boards. She did so because racism has perverted the process of participation via winner-take-all systems. How controversial was that? Not very much. As Lewis pointed out in his op-ed, under the Voting Rights Act, the Bush administration had approved proportional representation for "35 different jurisdictions."

The right-wing attack on Guinier as a “quota queen” was not only racist, it was hypocritical: As Berman's book describes, Republicans at the time were starting to latch on to single-member majority-minority Congressional districts as a means to further racial polarization, and elect more Republicans in the South. Guinier, in contrast, was arguing for multi-member districts with proportional representation that would reduce racial polarization, and encourage cross-racial politics—the exact opposite of the “quota queen” accusations hurled against her. "She was trying to find ways of encouraging voters to join together,” Lewis wrote, “because, as she says, they are 'of like minds, not like bodies.'”

This was not that hard to figure out. In addition to her densely-argued law review articles, Guinier had published in more popular venues as well. She had explained herself in print, in plain English. But—as with Anita Hill—Biden could not be bothered to even get the basic facts.

The same Beltway press that approved of Biden back then will certainly not be bothered now. Anita Hill is very old news to them, and Lani Guinier? Most of them can't even place the name. But the passage of time only makes Biden's failures more glaring. Given the collision course between Black Lives Matter and Biden's drug war record, there's bound to be a much higher level of sensitivity to how Biden mistreated those two exemplary black women when he was the man in charge of the process that humiliated them.

In the current social media age, it's inconceivable that this past wouldn't be stirred up again, whatever the out-of-touch Beltway media may believe.