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Sunday, August 24, 2008

A Cautious Dissent On Biden

I hate to pee rain on the upcoming parade, but yesterday morning's news that Obama picked Biden to be his Veep was pretty disappointing to me.  Here are any number of things that come to mind as reasons why he shouldn't have been chosen, at least based on my quick and untutored reactions.

a) Like the majority of Dems in the Senate during the first Iraq war, he voted against the effort to liberate Kuwait. This strikes me as an obviously wrong decision. By contrast his vote for authorizing the second Iraq use of force resolution is one that I think reasonable American politicians could disagree about. The fact that Obama voted against it and Biden voted for it may be a kind of triangulation device but I can't tell.

b) While he was recently running for the Dem nomination for POTUS, Biden dissed Obama as not ready for prime time. Now we get to hear that statement over and over again. Not to mention his other bone-headed comment about Obama as a nice mainstream articulate black guy.  Thanks JB. I'm looking forward to more of your insights into a diverse America.

c) As a professor, I can't help but notice that Biden had (at best) an utterly mediocre  academic background, and he was busted for plagiarism as a student and as a presidential candidate. Really, do academic achievement and intellectual integrity matter so little??

d) Notwithstanding the coverage in the Times today about Biden's foreign policy chops  -- but see supra a) -- Biden brings little identifiable talent or credentials of the sort that will help Obama secure the election, or persuade the voters that he's above politics as usual. Who does he pick as his running mate? A six-term senator.

I know Biden's supposed to be a great guy and that he's gone through lots and also improved over time in terms of his legislative abilities.  And I'm genuinely open to learning more about Biden as the next few days and months come around. (Wes Oliver, come educate me gently!)

But I can't believe we had to wait so long to find out that Biden's the VP selection.  I can only imagine that Biden's public skeletons were the least evil of the others under consideration.  And in terms of whether he's "ready" to be President, sure, he's been in the Senate since he was 29. But is there any plausible sense that he's got the game to be POTUS? I'm looking forward to being proven wrong, but I worry that if Biden's indicative of Obama's judgment on serious matters, the Dems need to worry more. I suspect that the race just got even tighter.

Update: Wes Oliver and I continue an exchange here.

Posted by Administrators on August 24, 2008 at 09:35 PM in Law and Politics | Permalink


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I know Dan Markel, and I know that he is not biased against individuals with working class roots or against individuals with a "lesser" academic legal pedigree. Professor Markel's personal views notwithstanding, we should be debating the reasoning behind his argument, not attacking him as a person.

In respect to the debate at hand, I agree that Joe Biden was not the most refined pick, and his past is unfortunate; however, Obama needs a more colloquially spoken, tougher running mate who can reach a different audience. Additionally, the debate ignores the fact that Joe Biden still has a law degree. He is still better educated than John McCain and Sarah Palin. I have not found Ms. Palin's academic record, but Mr. McCain's is certainly worse than Joe Biden's. As such, Obama could have chosen a less felicitous partner.

Posted by: Boethius | Aug 30, 2008 6:02:38 PM

lawprof: I think your response is rather off the mark. The fact that someone has a mediocre academic record surely does not mean he cannot go on to great things. I did not suggest otherwise. I only responded to your suggestion that Dan had some unstated animus towards U Del and Syracuse by point out that that ranking 76th out of 85 in your class surely counts as mediocre.

As for your suggestion that employers would prefer the bottom of the class at Yale over the bottom of the class at Syracuse, that is surely true. But I cannot see the relevance of that statement. Ranking at the bottom of the class at Yale would still be pretty mediocre by most people's standards.

Posted by: TJ | Aug 25, 2008 1:38:59 PM

Lawprof, if the suggestion is that I have a bias toward those with working class roots, think again before making such a baseless accusation. It's also insulting to people with working class roots to think that they can't avoid making obnoxious comments in public or find "a more subtle way to plagiarize." Talk about stereotypes!

Posted by: Dan Markel | Aug 25, 2008 11:19:01 AM


I agree with you about the plagiarism and JB's notorious mouth. I think that that's enough to make him an unsuitable candidate (and honestly, I've never been a fan of JB). My concern is that I see no necessary link b/w law school performance and ineptitude. I wonder if your concerns have more to deal with his working class roots. Maybe someone from a privileged background would be less likely to make obnoxious comments in public (but in private, sure!). Likewise, a more polished person might find a more subtle way to plagiarize (a sentence fragment here and there rather than 5 pages verbatim).

Posted by: lawprof | Aug 25, 2008 11:09:37 AM

"I suspect that the race just got even tighter."

Nah, no worries. Wait 'til we see McCain's pick. Sure to lose him votes, somewhere, no matter who it is.

Posted by: prison rodeo | Aug 25, 2008 10:20:24 AM

just to clarify, it was not the pedigree, but the performance that I was referring to when I mentioned "background." Sorry for not clarifying. Did you happen to notice, btw, that he lifted 5 pages of a law review article verbatim in a paper he handed in as his own?

The possibility of his overcoming the background of ineptitude is real. I look forward to seeing more evidence of it in the future. But reading about the record, and hearing comments like “you cannot go to a 7-Eleven or a Dunkin’ Donuts unless you have a slight Indian accent,” make me wonder how much "redemption" has really occurred.

Posted by: Dan Markel | Aug 25, 2008 9:56:09 AM

To summarize the argument:
Biden didn't support enough wars.
Biden ran in the primary and said things people in primaries tend to say.
Biden performed relatively poorly as a student four decades ago and had one issue with plagiarism.
Biden "plagiarized" another's political speech (because it's obviously the case that other politicians' speeches come straight from their own hearts and minds) (more on this at http://en.wikipedia.org/wiki/Joe_Biden).
He has been a senator for a long time but lacks other unidentified talent and expertise.

Posted by: anon | Aug 25, 2008 9:54:21 AM


I disagree. Even if a discussion of academic credentials "represents a problem with our political debate," that does not mean that Dan has to exacerbate the problem. Although Dan's comments re: plagiarism were quite appropriate, his remarks about JB's academic credentials were unnecessary.

Posted by: lawprof | Aug 25, 2008 8:42:39 AM

Fsir or not, academic record remains part of the discussion of presidential (and vice-presidential) qualifications--for good (Bill Clinton was a Rhodes Scholar, Barack Obama was EIC of HLR) and bad (McCain was almost at the bottom of his class at Annapolis). Yes, it often is celebrated, at least when it is a Republican candidate. But that represents a problem with our political debate, not with Dan's post.

Posted by: Howard Wasserman | Aug 25, 2008 6:59:06 AM

One pathological liar hooking up with another pathological liar, what's not to like if you are a liberal and or a Democrat?

Posted by: juandos | Aug 25, 2008 6:42:53 AM


Even if your assumption about Dan's comment is correct, the remark is still problematic. First, JB graduated from law school FORTY years ago. My goodness, hasn't he redeemed himself since that time? Even the credit bureaus knock off the bad stuff after 7 or so years. Second and relatedly, some law grads with "utterly mediocre academic backgrounds" go on to do great things which are intellectually rigorous. For example, I can think of one (universally) well-regarded law prof who admits that he was a so-so law student (by objective measures). Thank goodness he wasn't dereailed off the academic track because of his so-called mediocrity. Third, your comment that JB's record "counts as a mediocre record no matter what law school you attend" is simply not true. I'd say that many employers would hire a "mediocre" Harvard, Yale, or Stanford law graduate over a similarly ranked pereson from a school lower in the pecking order. And in some cases, the so-called mediocrity is excused or even celebrated (e.g., JFK Jr.). Fourth, referring to someone as "mediocre" can be particularly hurtful (and, to be clear, I see no difference between calling a person "mediocre" and saying that the person has a mediocre record). Although JB probably could care less about how Dan describes him, those words could irreparably harm someone who is more fragile (and lead to horrible consequences).

Posted by: lawprof | Aug 25, 2008 6:22:59 AM


Although I cannot be certain, I assume that Dan was referring to the fact that Biden was 76th in his class of 85 in law school.


I think that counts as a mediocre record no matter what law school you attend.

Posted by: TJ | Aug 25, 2008 12:01:24 AM

"Pee" was in keeping with the alliterative sentence, as well as personal (if not idiosyncratic), and certainly more modest than "rain."

Posted by: Patrick S. O'Donnell | Aug 24, 2008 11:54:37 PM

I agree with everything that you've pointed out (including the plagarism, which is absolutely outrageous) except for your reference to JB's "utterly mediocre academic background." Are you troubled by his academic performance or pedigree? If your concern is with the latter, I think that's terribly unfortunate. Do you know why Biden chose to attend UDel and Syracuse Law? Hmmm, is it that folks with non-Ivy League pedigrees are ill-suited for the Office of the VP? Is it a class issue? Please tell me that I'm wrong. This raises a curious question: What do Ivy League law profs who (are forced to) teach at non-elite law schools really think about their non-elite students?

Posted by: lawprof | Aug 24, 2008 11:33:48 PM

(a) is wrong in hindsight, but not obviously wrong, and it certainly wasn't obviously wrong at the time.

As for Biden, I have my misgivings about him -- too much bloviating at confirmation hearings for one -- but I'm not disappointed in the choice. Who would you rather have Obama picked?

Also, "pee on the upcoming parade?" What's wrong with "rain?"

Posted by: James Grimmelmann | Aug 24, 2008 10:00:43 PM

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