In the 10 days since Supreme Court Justice Antonin Scalia’s death, politicians of both parties have been forced to square their current positions on whether or not to confirm President Barack Obama’s promised nominee to succeed Scalia with their past statements on the subject.
For instance, Senate Majority Leader Mitch McConnell, R-Ky., who now favors leaving the nomination to Obama’s successor, has been confronted with a 45-year-old law review article in which he suggested that it is “perfectly legitimate” for a president to exercise his constitutional right to make a nomination.
Now it’s Vice President Joe Biden, who called on Senate Republicans last week to take up the Obama nominee, who is being confronted with his past.
C-SPAN on Monday posted a clip of a sprawling 90-minute address then-Sen. Biden delivered on June 25, 1992, on the subject of reforming the Supreme Court confirmation process. Biden, in his fourth term and serving as Judiciary Committee chairman, spoke in anticipation of the end of court’s term that year – the traditional season for justices to announce their retirements.
And if such a retirement came to pass, he said, President George H. W. Bush should “not name a nominee until after the November election is completed” and, if he did, “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
“Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself,” Biden said. “Where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue.”
No such retirement did come to pass, and Biden delivered his remarks considerably later in the presidential election year than Obama and the Senate now finds themselves. But it is hard to argue that we are not now, as Biden put it, “in the full throes of an election year.” And embedded in the roughly 20,000 words he delivered on the Senate floor that day were rebuttals to virtually every point Democrats has brought forth in the past week to argue to the consideration of Obama’s nominee.
“I am sure, Mr. President, after having uttered these words some will criticize such a decision and say it was nothing more than an attempt to save the seat on the Court in the hopes that a Democrat will be permitted to fill it, but that would not be our intention, Mr. President, if that were the course to choose in the Senate to not consider holding hearings until after the election. Instead, it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution.
“Others may fret that this approach would leave the Court with only eight members for some time, but as I see it, Mr. President, the cost of such a result – the need to reargue three or four cases that will divide the Justices four to four – are quite minor compared to the cost that a nominee, the President, the Senate, and the Nation would have to pay for what would assuredly be a bitter fight, no matter how good a person is nominated by the President, if that nomination were to take place in the next several weeks.
“In the end, this may be the only course of action that historical practice and practical realism can sustain.”
Biden’s office did not immediately respond to a request for comment, but Democratic aides were quick to privately note not only the later timing of Biden’s speech in the election year, but also the fact that he was speculating on a possible vacancy, not setting out a course of action on an actual vacancy.
Republicans wasted no time at all highlighting Biden’s long-forgotten remarks: Judiciary Committee Chairman Charles E. Grassley. R-Iowa, came to the Senate floor Monday afternoon to deliver fulsome praise for Biden and the newly-unearthed speech.
“It’s the principle that matters, not the person,” Grassley said, before setting out the “Biden Rules” the Senate ought to abide by: no presidential Supreme Court nominations in an election year, and if there is such a nomination, that the Senate ought to “seriously consider” not even holding a hearing on the nominee.
Biden, he said. “knows what the Senate should do, and nd, I believe, in his heart of hearts, he understands why it must.”
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