Vice President Biden joined the battle over filling the existing Supreme Court vacancy Thursday by picking a fight with a familiar foe: Joe Biden.
For weeks, Biden has been at the center of the debate about filling the seat left vacant by Justice Antonin Scalia’s death last month. But his prominence had nothing to do with what he said about Scalia; instead, Senate Republicans have invoked a 1992 speech by the then-chairman of the Judiciary Committee about Supreme Court confirmations to invoke what they are calling the “Biden Rule.” It holds that no vacancy on the high court that opens in a presidential election year shall be filled until after the voters have spoken.
The vice president, visibly angry over the use of his 24-year-old speech to block a nomination hearing for Judge Merrick Garland, delivered his most detailed explanation yet of what he said back then and what it should mean in today’s political environment.
“There is no ‘Biden Rule.’ It doesn’t exist,” the vice president told more than 200 students, professors and staff at the Georgetown University Law Center, half a mile from Biden’s previous workplace of 36 years, the U.S. Senate.
Weaving between the current state of politics and dire predictions about the consequences of leaving the court with just eight justices for an extended period, Biden focused on how he treated Republican nominees to the court during his Senate tenure. And he emphasized how President Obama went out of his way to select someone, Garland, who met the standard of a centrist choice capable, in ordinary times, of winning large Republican backing.
The vice president acknowledged that Garland’s selection disappointed administration supporters who wanted a more forcefully ideological selection or a jurist whose background might make history.
“Some of my liberal friends don’t agree with me, but I do. It’s about the government functioning,” he said.
Obama avoided a choice that would have made more political headlines because Republican control of the Senate mandated a more centrist choice, he added. “The president did his duty. We sought advice. And we ultimately chose the course of moderation because the government is divided.”
Republicans rejected Biden’s speech as an attempt to rewrite his own history on the subject. “Vice President Biden will attempt to clean up his past remarks on the Supreme Court by claiming he didn’t really say what he said,” Don Stewart, a chief adviser to Senate Majority Leader Mitch McConnell, R-Kentucky, wrote in a memo to the press before the speech.
The intent of Biden’s remarks back in 1992 is almost irrelevant at this point; Senate Republicans have universally embraced their own interpretation of his remarks, which they say support their position that no new justice should be confirmed at this stage of the Obama administration.
“It would be our pragmatic conclusion that once the political season is underway, 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,” then-Sen. Biden said in a roughly 90-minute speech on the Senate floor.
Within hours of Scalia’s death, McConnell issued a proclamation that no nominee would be considered by the Republican majority until after the next president took office and sent up a nominee next year.
He cited a vague, unfamiliar standard that supposedly had been in place for decades, sealing off vacancies that occur during a presidential election year, but few GOP senators had heard of it, and many stumbled over their words trying to explain themselves to voters back home. Finally, a Republican researcher found the 1992 clip of Biden’s speech, and within a 24-hour span, the wobbly GOP caucus shored itself up and dug in for a fight in which the senators vow to never consider Garland for the seat prior to the fall election.
Biden’s Thursday speech served to rebut the Republican portrayal of his 1992 remarks, which came about eight months after the confirmation of Justice Clarence Thomas, a polarizing process that came amid allegations of sexual harassment. The memory of the brutal 1987 nomination of Robert Bork to the Supreme Court, which failed with 58 senators voting against him, was still fresh.
On Thursday, Biden explained that, in their full context, his remarks were about the heated nature of those confirmations and his lingering bitterness over what he considered “no consultation” from President George H.W. Bush in nominating Thomas.
He acknowledged that if the same circumstances presented themselves again – a vacancy, then a nominee with no consultation – he would recommend shutting down the process. But then Biden recited verbatim another portion of his 1992 speech in which he said that if there were a vacancy, and if President George H.W. Bush consulted with Biden and other Senate leaders to select a consensus choice, he would have held hearings and a vote just weeks before the 1992 election.
“I said, and I quote, ‘If the president consults and cooperates with the Senate, or moderates his selections, then his nominees may enjoy my support as did Justice Kennedy and Justice Souter,’ end of quote,” Biden recalled Thursday. “I made it absolutely clear that I would go forward with the confirmation progress.”
Justice Anthony Kennedy and former justice David Souter were two of the nine Supreme Court nominations Biden oversaw in his nearly 18 years as the top Democrat on the Senate Judiciary Committee.
Biden also warned that a Supreme Court with just eight members would lead to many 4-to-4 decisions, deadlocking the court. The Supreme Court often takes up cases when appellate courts from different parts of the country have ruled in different ways on the same legal issue. In the case of a deadlocked high court, the existing appellate decision stands.
He deplored the current state of gridlock inside Congress and demanded that his former colleagues not “spread this dysfunction” from Capitol Hill to the high court, meaning that different laws could apply in different parts of the country.
“I’ve never seen it like this,” Biden said, adding, “The world looks at this city right now as dysfunctional, and that’s a problem.”
(c) 2016, The Washington Post · Paul Kane