President Obama seemed to be amused as he brushed off recently uncovered comments by his own Vice President from back in 1992 suggesting an election year was not the time for a lame duck President to nominate a Supreme Court Justice.
After a meeting with King Abdullah of Jordan on Wednesday, Obama told reporters, “they suggest that, well, there have been a couple of times where Democrats said that it would be wise for a President not to nominate someone. First of all, we know Senators say stuff all the time.” The President added, “Second of all, these were comments that were made where there was no actual nomination at stake. So it has no application to the actual situation that we have right now.” The President laughed at one point as he said this.
Though Vice President Biden was not mentioned by name, he is clearly the Senator who said “stuff” at a time when “there was no actual nomination at stake.” In case you missed it, Biden took to the Senate floor in 1992 and said, “It is my view that if a Supreme Court Justice resigns tomorrow or within the next several weeks or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not…and not name a nominee until after the November election is completed.”
Is it true that what Biden said in 1992 has no application to the situation now as President Obama suggests? It’s true there was no vacancy at the time but Biden’s thinking seems to have been that a lame duck President shouldn’t name a nominee at the end of his term. So the only significant difference is that Biden was speaking in June of 1992 and the current stalemate is taking place in February.
There are some other differences. In 1992, President G.H.W. Bush was running for reelection which is why Biden suggested he should hold off on a possible nomination until after the election. In other words, if Bush himself were to win a 2nd term then he could make the nomination. Obviously Obama isn’t running for a 3rd term, but what Biden was suggesting isn’t really so different than what the GOP is saying now, i.e. if a Democrat wins the election, they can make the nomination. After all, Biden’s argument didn’t turn on the fact that Bush himself would be in office. The whole point was that someone other than Bush, perhaps a Democrat, might be in office. And of course that’s exactly what happened in the 1992 election.
Meanwhile, GOP members of the Judiciary Committee released a letter sent to Majority Leader McConnell which makes clear they have no intention of backing down on their plant to withhold consent on any Obama nominee. It reads in part:
We intend to exercise the constitutional power granted the Senate under Article II, section 2 to ensure the American people are not deprived of the opportunity to engage in a full and robust debate over the type of jurist they wish to decide some of the most critical issues of our time. Not since 1932 has the Senate confirmed in a presidential election year a Supreme Court nominee to a vacancy arising in that year…
Accordingly, given the particular circumstances under which this vacancy arises, we wish to inform you of our intention to exercise our constitutional authority to withhold consent on any nominee to the Supreme Court submitted by this President to fill Justice Scalia’s vacancy.
Video of President Obama’s statements to the press was published by Politico: