Vice President Joe Biden defended himself against what Republicans called the “Biden rule,” but even before for the former senator’s now-famous 1992 opposition to an election-year Supreme Court nomination, he was known for blocking judicial nominees on philosophical grounds.
“We’re watching a constitutional crisis in the making borne out of dysfunction in the Senate,” Biden said Thursday at Georgetown University. He added that 4-4 splits on the court could lead to a “patchwork Constitution.”
“Now, I hear all this talk about the ‘Biden rule.’ It’s frankly ridiculous. There is no Biden rule. It doesn’t exist,” the vice president told the gathering of law students and faculty. “There’s only one rule I ever followed in the Judiciary Committee. That is the Constitution’s clear role of advice and consent.”
President Barack Obama nominated Judge Merrick Garland, of the U.S. Circuit Court of Appeals for the District of Columbia, to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia.
Biden said that, in all the years he served on the Judiciary Committee, there were nine nominations, and every nominee got a vote.
“Voting no is an option and it is their option, but saying nothing, seeing nothing, reading nothing, hearing nothing, and deciding in advance simply to turn your back before the president even names a nominee is not an option the Constitution leaves open,” Biden said.
Republicans argue the choice of what type of justices fills the vacancy should be decided by voters in the presidential and Senate races in November.
Scalia, considered the most conservative justice during his time on the court, was confirmed in the Senate by a vote of 98-0, when the Senate largely gave deference to presidential nominees. The deference to presidents changed under then-Sen. Biden, who served as Judiciary chairman from 1987 to 1995, when President Ronald Reagan nominated Judge Robert Bork to the Supreme Court.
“The Senate has an undisputed right to consider judicial philosophy,” Biden said in August 1987, regarding opposition to Bork, whom he had initially supported. The Bork nomination failed with a 42-58 vote.
A Wall Street Journal column in 2009 said that Biden “wrecked the judicial confirmation process” by introducing politics in a way that had not been done before, arguing the result of Biden’s tenure as Judiciary Committee chairman created ideological litmus tests for judges.
Interestingly, during the Georgetown speech, Biden decried the partisanship of the process.
“We can’t let one branch of government threaten equality and rule of law in the name of a patchwork Constitution,” Biden said. “We must not let justice be delayed or denied as a matter of fundamental rights. We must not let the rule of law collapse in our highest court because it’s being denied its full complement of judges as a result of the Senate’s refusal to accept a presidential nominee. I still believe in the promise of the Supreme Court delivering equal justice under the law, but it requires nine now.”
“Dysfunction and partisanship are bad enough on Capitol Hill,” Biden continued. “We can’t let the Senate spread that dysfunction to another branch of the government, to the Supreme Court of the United States.”
However, during his 1992 “Biden rule” speech, he asserted Biden dismissed the 4-4 split court as not a major problem.
“Others may fret that this approach would leave the Court with only eight members for some time,” Biden said in 1992. “But as I see it, the costs 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 costs 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. And in the end, this may be the only course of action that historical practice and practical realism can sustain.”
Justice Anthony Kennedy, Reagan’s third pick, was confirmed in early 1988 to the high court under Biden, as was Bush’s first nominee, Justice David H. Souter. Neither nominee had a long record to criticize on judicial philosophy.
Biden blocked numerous appeals court nominations during his tenure as chairman, and conservatives criticized him for his role in the contentious confirmation hearings of Justice Clarence Thomas in 1991, involving the harassment allegations by Anita Hill. However, last year, Hill complained that Biden was too tough on her during questioning.
High court nominees that Biden opposed — Bork, Thomas, Chief Justice John Roberts and Justice Samuel Alito — each got a hearing and a vote, which he pointed out in the Georgetown speech.
In 1992, Biden delivered the Senate floor speech that Republicans have begun calling the “Biden rule,” in which he opposed Senate confirmation of any Supreme Court nominee by then-President George H.W. Bush during an election year.
“Some will criticize such a decision and say that it was nothing more than an attempt to save a seat on the court in hopes that a Democrat will be permitted to fill it, but that would not be our intention,” Biden said during the 1992 floor speech. “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 essential to the process. Otherwise, it seems to me we will be in deep trouble as an institution.”
However, the White House and Biden isolated one portion toward the end of Biden’s speech in which he said, “If the president consults and cooperates with the Senate, or moderates his selection after consultation, then the nominees may enjoy my support as did Justices Kennedy and Souter.”