The Rights of Biden
6:30 PM, Aug 25, 2008 • By TERRY EASTLAND
In a largely overlooked respect, Biden is the perfect choice for Obama to have made. They both believe that judges may enforce rights not found in the text or history of the Constitution. Biden made plain his belief in unenumerated rights jurisprudence (this is some fancy law language) in 1987 when, as chairman of the Senate Judiciary Committee, he presided over the confirmation hearing of Judge Robert Bork. Biden opened the hearings by saying that he had rights simply because he existed, the implication being that judges should enforce those unstated rights. Biden made this the theme of the hearings, and he repeated the point during the full Senate debate over the nomination. "I believe I have rights because I exist, in spite of my government, not because of my government,'' he said. ''Judge Bork believes that rights flow from the majority through the Constitution to individuals, a notion I reject.'' That was a caricature of Bork's actual position, but the "I have rights because I exist that are judicially enforceable" is not a parody of Biden's position-or Obama's. Expect Biden to take the lead on judicial selection, and don't be surprised if he reprises his rights talk.