“If a Supreme Court Justice resigns tomorrow … or at the end of the summer, President Bush should not name a nominee until after the November election is completed.”
-Senator Joe Biden, June 25, 1992
“I know him personally. I know his integrity; I know his legal ability. I know his of honesty; I know of his acumen. He belongs on the Court.”
-Senator Orrin Hatch on Merrick Garland in 1997
Vice President Biden was the Chairperson of the Senate Judiciary Committee when, in late June of 1992, he gave a speech to his colleagues in the Senate on the subject of Supreme Court nominees. At the time, no vacancy existed on the Court, no retirement had been announced, no departure of a sitting Justice was imminent or expected. The then Senator was merely giving voice to a concern about the highly divisive and rancorous atmosphere that existed in the Capitol at that point in a presidential election year.
Biden’s speech was largely ignored at the time and was forgotten by almost everyone until the death of Justice Antonin Scalia created a vacancy on the Court last month. But almost immediately after the death was announced, Senate Majority Leader Mitch McConnell declared that no nominee to replace Justice Scalia would be considered until a new president was sworn in next January. And in anticipation of pushback to that announcement, Senator McConnell “invoked” the “Biden Rule,” declaring that in keeping with that “rule,” no vote would be taken; indeed, no Judiciary Committee hearings would be conducted until a new president was in office.
And, of course, since the Vice President himself had created the rule, how could the administration in which he serves deny its applicability? That would be the logic of the Majority Leader’s invocation of the Biden Rule, except for the fact that the “rule” isn’t a rule, and even if it were, it isn’t what McConnell seems to think it is.
The full text of then-Senator Biden’s floor speech makes clear that what Biden was proposing wasn’t intended to deny a sitting president the Senate’s advice and consent to his nomination. What Biden was saying was that in the heat of a presidential campaign (then three months later in the year than where we are now), political passions would make any hearings unproductive. Instead, he was suggesting, the president’s nominee should be considered dispassionately after the election.
He was not, in other words, suggesting that President Bush be denied his constitutional prerogative and responsibility, only that the president’s nominee, should one be made, be considered after the election. And, again, these were just thoughts from the then-Chairperson of the Senate Judiciary Committee when no nominee was under consideration because there was no vacancy on the Court.
Antonin Scalia died on February 13, eleven months and one week before a new president takes office. Assuming the quickest of presidential nominations and Senate confirmation of the nominee, the vacancy now existing on the Court would have gone unfilled for over a year, hardly what Biden contemplated when he made his speech about a hypothetical circumstance. Assuming a vacancy had occurred the day after Biden’s speech in 1992, his plan/rule would have had the new Justice confirmed (or rejected) within six months.
So, let’s quit the subterfuge, shall we? The invocation of the Biden Rule is nothing more than a way to justify an inappropriate and unconstitutional assertion of power by a Republican-controlled Senate that has relentlessly opposed Obama from the day he took office in 2009. And, yes, the next Justice will determine the balance on the Court, so it’s a big deal. But that would be true no matter when the vacancy occurred.
McConnell’s other “argument,” that the “people should decide,” is also an absurd, unconstitutional canard. First of all, the people don’t get to decide directly, ever. They only get to elect a president, which they did in 2012, and that president serves until his term ends. So, to turn that argument on its head, the people did decide; they decided when they elected Obama to serve until January 20, 2017, and they decided when they, collectively, gave control of the Senate to the Republicans in 2014.
The Senate is empowered by the Constitution to vote its approval or disapproval of the president’s Supreme Court nominees. A clear procedure exists to fulfill that responsibility. It begins with hearings before the Judiciary Committee and concludes with a full floor vote in which the nominee must receive 51 votes to be confirmed. That’s what the Senate procedure provides and what the Constitution requires. The Biden Rule sought to modify the procedure in the interest of fairness to the nominee, not to deny the president the ability to make the selection and have that selection considered by the Senate.
Now, with the ploy fully revealed for what it is, the question that must be asked is this: why not just proceed with full consideration of the nominee and vote him down? Nothing in the Constitution requires that the Senate confirm a president’s Supreme Court nominee, only that the nominee be justly considered by the Senate. Senator McConnell and his colleagues have the votes (54 currently) to defeat Obama’s nominee. Why not just take that route, repeatedly, if necessary, until the president’s term ends, thereby leaving the vacancy for the next president to fill?
And the answer, of course, is that Obama has sent them a nominee who is so far beyond reproach that he would easily pass confirmation with more than enough Republican votes on top of those the Democrats would provide. Merrick Garland is just such a nominee. In fact, he’s so unobjectionable that Utah’s Orrin Hatch has suggested that the Senate might well decide to confirm Garland after the November election if the Democrat’s presidential nominee wins. (The thinking there is obvious: take the moderate Garland over a far more liberal nominee from President Clinton or Sanders.)
Such hypocrisy! It’s makes one wonder how they live with themselves, having sworn to uphold the Constitution they so devoutly claim to honor.
BHO was rated the most liberal sitting senator when he held that office by an ultra- liberal organization. While he had majorities in the House and Senate, his work as POTUS was consistent with that.
This cost him first one majority, then the other, in elections since.
Invoking “The Biden Rule” in press releases seems to have encouraged nomination of a well-known moderate by a President whose prior nominations were anything but.
I expect Merrick Garland will get hearings and an up or down vote. I expect that vote will be up. SCOTUS needs more than one swing vote, and almost everyone knows it.