11/07/2005 02:12 am ET | Updated May 25, 2011

Biden and Kennedy, Together Again

If anyone should know how to stop a right-winger from being confirmed to the Supreme Court, it is Ted Kennedy and Joe Biden. Together they played key roles in stopping Robert Bork, although together they fumbled on Clarence Thomas.

I start with the premise that they, like I, would like to defeat the Alito nomination. On any 5-4 decision, we can be pretty assured that Alito will be on the side with which we disagree. These are apt to be important decisions, like abortion, deprivation of liberties in the name of the war on terror and the increasing infiltration of religion into our civic life.

Looked at through the prism of the successful Bork effort, the Dems already have one important accomplishment: they have delayed the hearings until January. When Bork was nominated, the Reagan Administration wanted almost immediate hearings, but Biden successfully resisted, giving the opponents time to read some of Bork’s amazing writings. Alito’s work is unlikely to be as helpful, but okaying strip searches of 10 year old girls is a hopeful start.

On the Sunday talk shows, Biden and Kennedy showed that they have learned from the past. On Bork, Kennedy immediately made a statement that “Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch-counters, rogue police could break down citizen’ doors in midnight raids, schoolchildren could not be taught about evolution … .” This was widely considered polarizing and not helpful to the effort to stop the nomination

Today, on MTP Kennedy was much more adroit, essentially claiming an open mind. He said, “… there are some important areas that I'm concerned about, his decision about the strip-searching of a 10-year-old girl that was basically rejected by the court, his decision on the Family and Medical Leave which is so important to workers who are trying to make a judgment between the child that they love and the job that they need--that position was over turned by the Supreme Court--and also decisions with regards to disabilities rights where a young person needed a chair to be able to participate in a class and he rejected those rights. So we'll have a full hearing. Looking forward to it. It's an important decision. I'm open-minded. And we'll look forward to the hearing.”

Kennedy also said he had not heard talk of a filibuster.

On This Week,(Transcript costs $20, but podcast available here) Biden said he was uncommitted and that people with whom he had talked had said good things about Alito and also that he was “very conservative.” Biden also predicted an up or down vote, although he defended the legitimacy of a filibuster based on opposition to judicial philosophy. Finally, Biden said that after the right wing kerfuffle on Meirs, “all of the smoke has been blown away. Everyone left, right and center believes that you should be able to know what the judicial philosophy of the nominee is,” thus setting up the expectation that Alito will be forced to answer questions that Roberts was able to avoid.

This is a promising start. Public opinion will play a huge role in this and it is important that Biden and Kennedy be perceived as open minded on Alito. If Biden can really force Alito to answer questions on his judicial philosophy, the hearings will have substance. What is needed now is a series of scary revelations that show that Alito’s world is not what the public wants.