Former Vice President Joseph Biden on Judges

This is another installment of an ongoing series of posts summarizing 2020 Democratic presidential candidates' views on judges and the courts.  All posts in this series can be viewed here.


On Neil Gorsuch:

  • In a March 28, 2018 interview on podcast, “Pod Save America,” Biden stated “I would work like the devil if I were in the Senate, if we had a Democratic Senate, to keep [another] Gorsuch from going on the court again. The single most damaging thing thus far, short of what may happen to our foreign policy, to all the things I care about, was Gorsuch going to the court.”[1]


On Brett Kavanaugh:

  • In a written statement on the September 29, 2018 hearings of Brett Kavanaugh and Dr. Christine Blasey Ford, Biden wrote, “What we witnessed yesterday from the Republican Judiciary Committee members was a degree of invective, blind rage and brute partisanship that threatens not only the Senate and the Supreme Court — it threatens the basic faith in fairness and justice that binds this country together.”[2]
  • Biden voted “No” for Brett Kavanaugh’s DC Circuit Court confirmation on May 26, 2006.[3]


His opposition to Trump’s judicial nominees:

  • Of all of President Trump’s appointees to the Court of Appeals, only one was a district court judge who had a roll call vote when Biden was a Senator.  Biden voted ‘Yes.’[4]
  • Of all the current district court judges appointed by President Trump, Joe Biden prevented one from becoming a judge by not offering timely senatorial “blue slip” approval of a candidate from Delaware.[5]


Position on expanding the Supreme Court
As a member of the Senate Judiciary Committee, Biden stated in a hearing on July 13, 1983[6], “President Roosevelt clearly had the right to send to the United States Senate and the United States Congress a proposal to pack the Court.  It was totally within his right to do that—he violated no law; he was legalistically absolutely correct.  But it was a bonehead idea.  It was a terrible, terrible mistake to make, and it put in question, for an entire decade, the independence of the most significant body—including the Congress in my view—the most significant body in this country, the Supreme Court of the United States of America.”[7]

During his March 28th, 2018 interview on “Pod Save America,” speculating on the future of the Supreme Court during the Trump Administration and what could be done to thwart the President’s intentions for the Court, Biden stated, “I think everything should be done and can be done within constitutional parameters . . . if we start to add on to disregarding the Constitution, if we continue to strike back with the same methods he [President Trump] used of abusing the system, by prostituting the democratic processes . . . when it’s a little bit like saying ‘OK Charlie cheated, now we’re going to cheat’ . . . when it’s an intuitive or express commitment to the basic constitutional principles . . . when we can’t be party to tearing down the very things that are designed to keep Presidents from being able to abuse power.”[8]

What kind of Supreme Court justice would he appoint?:  
In his September 15, 1987 opening statement on the nomination of Judge Robert Bork to the Supreme Court, then-Senate Judiciary Chairman Biden characterized his thoughts on constitutional interpretation as “Each generation in some sense has had as much to do to author our Constitution as the 39 men who affixed their signatures to it 200 years ago.”[9]


His views about the role of the courts:
During the July 20th, 1993 confirmation hearing of Ruth Bader Ginsburg, then-Senate Judiciary Chairman Biden emphasized the importance of the Supreme Court’s ability to judge ahead of the popular will of the people.  He stated “There does come a time . . . when the Court has in the past and I suspect may have to in the future be a generation ahead of where the Nation is.”[10]


Last Updated: May 10, 2019


Works Cited:

[1] When Gorsuch was up for confirmation to the Tenth Circuit Court, he was approved by a voice vote on July 20, 2006 (



[4] Six Judges currently serving on the Court of Appeals previously served as U.S. District Judges. Five were confirmed to their U.S. District Court appointment via voice vote in the Senate. Only one, Richard J. Sullivan received a roll call vote which was 99-0 in his favor. Biden voted “yea” with the majority of the Senate. (

[5] “Biden Moves Connolly’s Bench Bid,” Sean O’Sullivan, The News Journal of Wilmington, Delaware July 23, 2008. Of all of Trump’s nominees to the district court, only two had come before the Senate for advice and consent. Dabney L. Friedrich was confirmed by the Senate twice via voice vote (once on 02/28/2007 and again on 12/22/2010[5]). Colm Connolly was confirmed as United States Attorney for the district of Delaware via voice vote on 09/14/201[5]. However, his initial nomination on 02/26/2008 for United States District Court Judge for the District of Delaware was returned after then-Senator Biden failed to return his blue slip on time in favor of the appointment.