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Barack Obama, Joe Biden perform total 180 on filling Supreme Court vacancy in election year

'That's not in the constitutional text'

Andrew Harnik - Pool/Getty Images

Democratic presidential nominee Joe Biden and former President Barack Obama declared Friday the Supreme Court vacancy caused by Ruth Bader Ginsburg's death should not be filled until after the election.

Their position is a complete reversal of what they said in 2016, when Antonin Scalia's sudden death left a vacancy on the high court just nine months before the presidential election.

What did Biden say in 2016?

In response to Republicans who vowed to not consider Obama's nominee — Appellate Judge Merrick Garland — Biden said it is acceptable to move forward with Supreme Court hearings even just months before an election.

Biden's comments, made in March 2016, came in response to Republicans citing a speech he delivered in 1992 about election year Supreme Court nominations. He said:

They completely ignore the fact at the time I was speaking of the time of the dangers of nominating an extreme candidate without proper Senate consultation. They completely neglected to quote my unequivocal bottom line. So let me set the record straight as they say. I said, and I quote, "If the president consults and cooperates with the Senate or moderates his selection then nominees may enjoy my support as did Justice Kennedy and Justice Souter."

I made it absolutely clear I would go forward with the confirmation process as chairman, even a few months ahead of a presidential election, if the nominee were chosen with the advise and not merely the consent of the Senate, just as the Constitution requires."

But Biden said on Friday: "Let me be clear: The voters should pick a President, and that President should select a successor to Justice Ginsburg."

What did Obama say in 2016?

Obama stated plainly that the Constitution requires the Senate to consider Supreme Court nominees, declaring that no rule exists stating that such consideration may only happen in non-election years.

"When there is a vacancy on the Supreme Court, the president is to nominate someone, the Senate is to consider that nomination, and either they disapprove of that nominee or that nominee is elevated to the Supreme Court," Obama said in February 2016, just days after Scalia's death.

"Historically, this has not been viewed as a question," he continued. "There's no unwritten law that says that it can only be done on off-years. That's not in the constitutional text."

But on Friday, Obama said: "Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn't fill an open seat on the Supreme Court before a new president was sworn in. A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what's convenient or advantageous in the moment."

One last thing…
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