I support William Barr for Attorney General, says ... Joe Biden

Joe Biden 1991, I should say. Mitch McConnell’s office is sending around the clip below on the eve of Barr’s confirmation hearing tomorrow, hoping to make mischief as the Democratic primary campaign starts rolling. It’s a fair cop, too. Biden was a big Barr fan during the nominee’s first go-round at the DOJ, telling Barr at one point during his hearing “I personally like you” and calling him a “heck of an honorable guy.” Let me stress that Biden was chairman of the Senate Judiciary Committee at the time. I think a Democrat-controlled version of the committee *might* still be capable of confirming an AG nominated by Trump, if only to ensure that the role is being filled by someone vetted by the Senate instead of by Matt Whitaker. But there sure wouldn’t be any pleasant but unnecessary “I think you’re honorable” chitchat by Democrats.

And the confirmation wouldn’t have such overwhelming support that it would be conducted by voice vote, as was the case for Barr. If Barr were confirmed by a Democratic-controlled committee it would be a by single vote, with the Democrat from the reddest state tasked to cross the aisle so that the rest of his colleagues on the left could all pander to the base by voting no.

This wasn’t the extent of Biden’s interactions with Barr during the 1991 hearing either. I flagged this once before but it’s worth revisiting:

Atty. Gen.-designate William P. Barr, revealing his view on abortion for the first time, said Wednesday that the Supreme Court’s 1973 Roe vs. Wade decision legalizing abortion was wrongly decided and should be overturned

Sen. Joseph R. Biden Jr. (D-Del.), Senate Judiciary Committee chairman, seemed startled by Barr’s answer to the question on “a woman’s right to choose” that was asked by Sen. Howard M. Metzenbaum (D-Ohio).

Biden, who noted he did not agree with Barr, said the nominee’s response was “the first candid answer” he had heard on the supersensitive question–one that judicial nominees traditionally refuse to answer. “It’s astounding to me,” Biden said. “You should be complimented.”

“You should be complimented” is not the answer progressives in 2019 would be looking for in response to a statement of opposition to Roe v. Wade, even on the limited ground of candor. Which, of course, is why McConnell is promoting Biden’s role in Barr’s confirmation nearly 30 years ago. The fact that the former VP supported him in 1991 won’t move a single Democratic vote in the Senate but it will potentially complicate Biden’s presidential chances. If anything, this is more incentive for the Warrens and Harrises and Bookers and Gillibrands to vote no on Barr, to distinguish themselves from Uncle Joe’s heresy, and McConnell knows it. That is, he’s not trying to influence the confirmation process, he’s trying to influence the Democratic primary by using this to turn up the heat on Biden, arguably Trump’s most dangerous potential challenger, with leftists.

But wait. Biden has a defense here. Look back to his comments in the Congressional Record at the time. From his floor speech announcing his support for Barr:

Mr. Barr agreed the Constitution assigns warmaking powers jointly to the Congress and the President. He acknowledged the President cannot initiate an offensive action and, even where the President has latitude to respond where lives are at stake or the vital interests of Americans are threatened, his authority is `provisional,’ because it is always subject to Congress’ exercise of power. That is in the hearing record.

This testimony indicates to me that Mr. Barr recognizes the Congress and the President must be united in the decision to commit substantial forces to armed hostilities abroad, and it reveals he understands the separate but shared nature of the warmaking power…

He also said he expects and accepts the Supreme Court’s decision on Morrison versus Olson and he would support a reauthorization of the independent counsel statute when it expires next year.

The AP and NYT each reported recently that when Bush 41 asked his cabinet in early 1991 if he had legal authority to attack Iraq after Saddam invaded Kuwait even if Congress opposed it, Barr (then deputy AG) replied, “Mr. President, there’s no doubt that you have the authority to launch an attack.” Meanwhile, while Barr might “accept” the decision in Morrison v. Olson holding that the office of independent counsel is constitutional (it remains good precedent, after all), his writings on executive power have repeatedly affirmed his belief in a strong executive with broad unilateral powers.

In other words, when Biden is inevitably asked about all this his answer will be simple: Barr lied to me. Contra his statement in the clip about Barr accommodating a coequal branch of government, he’s come to realize that Barr believes in a unitary executive at a moment in American history when the executive shouldn’t be given the benefit of the doubt in acting on his own. That’s not great spin for Biden — it amounts to “I was a sucker” — but he needs to find some way to put distance between his support for Barr in 1991 and his chances in a Democratic primary in 2020. Better to say he got suckered than to stand by support for Trump’s nominee.