Biden Opposed Historic Black DOJ Nominees In Anti-Busing Crusade

In 1977, two black men nominated for key Justice Department posts by President Jimmy Carter easily won approval from the Senate Judiciary Committee. After confirmation by the full Senate, Drew Days III became the nation’s first black head of the department’s civil rights division and Wade McCree became the second black solicitor general. 

Only one member of the committee voted against them. It wasn’t segregationists Strom Thurmond (R-S.C.) or James Eastland (D-Miss.). It wasn’t even former Ku Klux Klan member Robert Byrd (D-W.Va.).

The lone Judiciary Committee vote against the two men was Sen. Joe Biden (D-Del.).

Biden’s opposition to Days and McCree was part of his crusade against busing, an imperfect and controversial means of desegregating public schools by transporting children to various schools farther away than their neighborhood ones. Biden initially supported busing during his 1972 Senate campaign, but once in office, he became the chamber’s leading liberal voice against it.

“I oppose busing. It’s an asinine concept , the utility of which has never been proven to me,” he said in a 1975 interview. “I’ve gotten to the point where I think our only recourse to eliminate busing may be a constitutional amendment.”

Biden’s shift reflected the politics of his white constituents who were livid about a court-ordered integration plan in Wilmington, Del. 

Biden wanted Days and McCree to unequivocally state their opposition to the Wilmington decision. 

McCree, a federal appellate judge in Detroit, said he saw nothing in the U.S. Constitution that “mandates a racial mix” in public schools and believed busing was “counter-productive” to achieving integration because it had become a “code word,” according to a March 3, 1977, report in the Wilmington-based News Journal. But he would not specifically give an opinion on the Wilmington decision. 

As a judge, McCree also had participated in a decision that ordered busing in the Detroit area. 

Days, likewise, said he had to “specifically decline to discuss the Wilmington case.” Day was a lawyer with the NAACP Legal Defense Fund, and he worked on school desegregation cases.

Stopping the integration of schools through busing was so important to Biden that he said it was a primary reason he wanted to be on the Senate Judiciary Committee. 

“One of the reasons I asked to join the Judiciary Committee, was so that I could work more closely with the attorney general and solicitor general and thereby put a stop to busing,” Biden said, according to a Feb. 18, 1977, News Journal article. 

And on March 9 of that year, Biden gave a Senate floor speech detailing why he opposed the two men’s nominations: “I voted against them because we seem to disagree over an issue of great concern to me and the citizens of Delaware. The issue is forced busing. I oppose it. The citizens of Delaware oppose it. And, if my instincts are correct, the people in this nation oppose it.”

Biden’s votes against McCree and Day and, more broadly, his stance on school busing loom as examples of the scrutiny he can expect if, as expected, he enters the 2020 presidential race. He’s already faced renewed criticism over his handling as Judiciary Committee chairman in 1991 of Anita Hill’s sexual harassment allegations against then-Supreme Court nominee Clarence Thomas. And within the last week, women have started speaking out about how he has made them uncomfortable over the years by touching them or initiating unwanted physical contact . 

McCree passed away in 1987; Days could not be reached for comment on Biden.

Biden’s spokesman also didn’t return a request for comment on whether the former vice president regretted his votes against the two men, although Biden has continued to stand by his opposition to school busing. 

“He never thought busing was the best way to integrate schools in Delaware — a position which most people now agree with,” Biden spokesman Bill Russo told The Washington Post last month. “As he said during those many years of debate, busing would not achieve equal opportunity . And it didn’t.”

Few people thought busing was the “best way” to integrate schools. Instead, it was usually viewed as a last resort.

For Sen. Edward Brooke (R-Mass.) the first black person elected to the chamber by popular vote and Biden’s counter on the other side of the debate busing “was the best thing that we had to at least desegregate the schools at that time in our history.”

Biden’s position was essentially that busing was acceptable in cases of deliberate segregation as in the South with its Jim Crow segregation laws but not when there was “de facto” segregation (as in Northern cities, where many neighborhoods just happened to be all white or all black).

But of course, that segregation in Northern cities was often just as deliberate, even if it was a bit sneakier.

“In many cities, the ‘neighborhood school’ — itself a product of (discriminatory) redlining (real estate practices), housing segregation, and discriminatory school transfer policies — remains sacrosanct. But we forget that through the 1960s and 1970s, local school boards and urban whites often resisted every other attempt at school and housing integration,“ Jason Sokol, associate professor of history at the University of New Hampshire, wrote in Politico in 2015. “With their resistance, they narrowed the options down to two: busing or segregation .”