Biden 1992 redux: I’d “highly recommend” not nominating a SCOTUS replacement in an election year

posted at 10:01 am on February 23, 2016 by Ed Morrissey

After video from 1992 emerged of Joe Biden demanding that George H. W. Bush refrain from filling any Supreme Court openings in an election year, the current VP insisted that critics took his remarks out of context. “One excerpt” from a lengthy Senate speech did not give “an accurate description of my views” on Supreme Court openings, noting that the speech also “urged the Senate and White House to work together to overcome partisan differences.” Biden somehow overlooked that his own suggestion at avoiding those partisan differences was to put off any nomination at all, but Biden and his defenders suggested that the whole idea was an off-the-cuff Biden riff on the Senate floor, not a real policy statement.

Perhaps they might have a little trouble with that argument after reading this interview Biden gave the Washington Post’s E.J. Dionne in June 1992.  Not only did Biden urge Bush not to send over a nominee, but as then-chair of the Senate Judiciary Committee, Biden said he would ask the Senate to sit on it until a new president took office:

“If someone steps down, I would highly recommend the president not name someone, not send a name up,” Biden said. “If he {Bush} did send someone up, I would ask the Senate to seriously consider not having a hearing on that nominee.”

“Can you imagine dropping a nominee, after the three or four or five decisions that are about to made by the Supreme Court, into that fight, into that cauldron in the middle of a presidential year?” Biden went on. “I believe there would be no bounds of propriety that would be honored by either side. . . . The environment within which such a hearing would be held would be so supercharged and so prone to be able to be distorted.”

“Whomever the nominee was, good, bad or indifferent,” he added, “would become a victim.”

Biden offered another way out in this interview, too. Only if a president came to the Senate with a willingness to offer a candidate that met with the majority’s sense of “judicial philosophy” should the process move forward:

The president, he said, should be prepared to compromise with the Senate not only on the identity of a nominee but also on the question of what judicial philosophy should be reflected on the court. “Unless the president is willing . . . to actually sit down with and compromise with the Senate beforehand, it is bound, guaranteed, that there will be a serious fight no matter who is sent,” Biden said.

So … what’s different 24 years later? Not even all the players are different — Biden’s still in the mix, for instance, and once again the Democrats have a Clinton on the near horizon as a potential president. Everything old is new again!

Chuck Grassley, the current Judiciary Committee chair, is more than happy to follow the Biden Rules, as he noted in a statement yesterday:

The Biden Rules recognize ‘the framers intended the Senate to take the broadest view of its constitutional responsibility.

The Biden Rules recognize the wisdom of those presidents – including another lawyer and former state lawmaker from Illinois — who exercised restraint by not submitting a Supreme Court nomination before The People had spoken.

The Biden Rules recognize the court can operate smoothly with eight members for some time, and ‘the cost of such a result, the need to re-argue 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 assuredly would be a bitter fight.’

The Biden Rules recognize that under these circumstances, ‘[the President] should consider following the practice of a majority of his predecessors and not name a nominee until after the November election is completed.’

The Biden Rules recognize that under these circumstances, ‘[It does not] matter how good a person is nominated by the President.’

The Biden Rules recognize that ‘once the political season is under way … 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.’

The Biden Rules recognize that ‘Senate consideration of a nominee under these circumstances is not fair to the President, to the nominee, or to the Senate itself.’

The Biden Rules recognize that under these circumstances, ‘the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.

Democrats liked the Biden Rules when they applied to Republicans. If they don’t like having them applied to themselves, then perhaps they shouldn’t have put a fool in charge of Judiciary and then a heartbeat away from the presidency in the first place.


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