Bar News Masthead

January 19, 2021

By Scott Merrill

In late January of 1992 then Senator Joseph Biden spoke at the New Hampshire Bar Association’s Mid-Winter Meeting about the unenumerated freedoms contained in the Bill of Rights.

1992 was year Bill Clinton was elected President of the United States, the Cold War was declared over, and Microsoft released Windows 3.1.

United States District Court Judge Steve McAuliffe was the New Bar Association President in 1992 and had met Biden several years earlier while working on his presidential campaign with former NH Supreme Court Justice John Broderick.

“We invited him [Biden] to the event in 92 because he was chair of the Judiciary Committee; he was always gracious about his time. He [Biden] has always been good about maintaining his ties with New Hampshire,” McAullife said.

Biden’s speech at the Sheraton Wayfarer in Bedford, which closed its doors in 2010, was one of many in a career that has taken a variety of twists and turns—and given 2021’s political climate which includes perceived threats to democracy and personal liberties, the speech he gave that evening in New Hampshire reads as a timely one.

The Bill of Rights encompasses the first 10 amendments to the United States constitution and spells out Americans’ rights in relation to their government. It guarantees a broad range of liberties, such as freedom of speech, press, and religion.

Biden, who is an attorney, argued in his speech that the ninth amendment offers protections beyond what are listed in the constitution and is the reason why the Bill of Rights has succeeded in maintaining personal liberties and freedoms like no other document in history.

Nowhere in the constitution, Biden said in his speech, does it say specifically that it is not a crime to teach foreign languages to children or that it’s alright to marry the person one choses.

“This debate over such ‘unenumerated rights’ form the crux of my disagreement with Judge Bork, and was the reason I felt compelled to lead the fight in the Senate against this otherwise honorable, brilliant, and decent man,” Biden said to the crowd of over 270 back in 1992. “Judge Bork believed that the danger to democracy from acknowledging unenumerated rights is greater than the danger to freedom posed by discarding them.”

In 1987, then-Sen. Joe Biden, D-Del., was running for president and serving as chair of the Senate Judiciary Committee, responsible for leading the Supreme Court confirmation hearings of Robert Bork whose nomination to the high court was ultimately thwarted.

Biden’s invitation to speak at the Bar Association’s Mid-Winter Meeting can be traced to his 1988 campaign for president and the friends he made in New Hampshire at that time.

“The genesis of him coming was a connection from his campaign for president in 1988,” Executive Director of the New Hampshire Bar Association, George Moore, said.  “There were a group of us who were on Biden’s executive committee including Steve McAuliffe, John Broderick, myself, Dick Swett and others. Being up here as much as he [Biden] was allowed him to make friends with a lot of people who felt they knew him. He’s naturally a very likeable guy.”

Former New Hampshire Supreme Court Justice John Broderick recalls working on the Biden campaign in 1987 with McAuliffe.

“Steve and I went to Wilmington, Delaware for Biden’s announcement and I’ve known him ever since,” Broderick said. “He’s a very gracious and understanding man.”

Broderick and McAuliffe began working on Biden’s campaign for president in the summer of 1987 and he recalls a personal moment while driving with Biden that he says exemplifies Biden’s graciousness and his character.

The Space Shuttle Challenger accident that killed all seven crew members, including Steve’s wife Christa, was still a fresh wound for McAuliffe and the nation back then, Broderick says.

“Steve was driving and Biden and his sister were in the backseat. As we’re driving to an event he said to Steve, ‘Steve, you’re going to have happiness in your life again, you’ll think of Christa but you’re going to find a great happiness,” Broderick says. “Now if I’d said that it would have been awkward but Biden had the lived experience, having experienced his own loss and I just thought that was about the most generous thing he could have done at the time. Awkward, but then I thought, ‘you’re amazing.’”

Biden’s speech in 92 refers to rhetoric from national leaders at that time who were “criticizing” the American legal system in a way that has become familiar in recent years.

“Let us remind the political critics of our profession that the Framers consider the right to a lawyer—as well as the right to a jury, even in civil cases—so fundamentally that these guarantees are protected in the text of the Bill of Rights,” Biden said. “That is not to say that our modern legal system is perfect: it has its faults as we all know. But the overheated rhetoric we have been hearing from some national leaders goes well beyond reform, to demagoguery.”

Biden’s connection to New Hampshire extended to his son Beau who died in 2015. Beau had served as McAuliffe’s law clerk after graduating from Syracuse Law School, his father’s alma matter, in 1994. According to Broderick this was at the same time NH Attorney General Gordon MacDonald was clerking for Judge Norman Stahl and the two became friends.

When Biden spoke at the Bar Association in 1992 there wasn’t a visceral political reaction that might be expected today according to Moore.

“You didn’t have a visceral reaction that said, ‘well, a bunch of liberal democrats got one of their guys to come up.’ In fact, he [Biden] was a national statesman,” Moore said. “You might disagree with him—certainly there were a number of conservative republicans in the Bar Association, but they didn’t take umbrage to Biden being invited up here. But for some of the relationships Biden made up here in New Hampshire, we wouldn’t have been able to get someone of his notoriety.”

As for why Biden chose to run for president again in 2020 after his failed attempt in 1988 and again in 2008, McAuliffe says a big part of it was because of his son Beau.

“Beau really believed in him and wanted him to run,” McAuliffe says, adding, with a touch of facetiousness, “I guess Broderick and I were both right 32 years ago.”

Then Senator Joseph Biden spoke at the NHBA’s 1992 Mid-Winter Meeting about the unenumerated freedoms contained in the Bill of Rights. United States District Court Judge Steven McAuliffe (left) and former NH Supreme Court Chief Justice John Broderick (right). McAuliffe was the Bar Association’s president in 1992.