Way back when George H.W. Bush was a lame-duck President and Joe Biden was a simple Senator from Delaware, the current lame-duck VP delivered a statement that has become his most enduring contribution to the way our government works.
It was 1992 when Biden delivered a stern warning to then-President Bush that the Congress would not allow him to seat a Supreme Court justice during the last year of his presidency.
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.
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The Senate, too, Mr. President must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson, and presses an election year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.
— CSPAN (@cspan) February 22, 2016
The “Biden Rule” as it became known ironically boomeranged back on Biden and President Obama in 2016. When President Obama chose to nominate Judge Merrick Garland to replace Justice Antonin Scalia, it was Senator Biden who Senate Republicans quoted when they decided not to hold hearings on the nomination.
Senate Majority leader Mitch McConnell (R-KY) cited the “Biden Rule” when he said the Senate would not hold hearings to confirm Garland.
— Sen. McConnell Press (@McConnellPress) March 16, 2016
Speaker of the House, Paul Ryan (R-WI), further argued that while the President had every right to nominate Judge Garland (as Pres. Bush had argued in 1992), the Senate had every right to refuse confirmation.
Under the #Constitution, the president has every right to make this nomination, and the Senate has every right not to confirm a nominee.
— Paul Ryan (@SpeakerRyan) March 16, 2016
Now that Donald Trump has won the presidency and will likely have the opportunity to choose the next 2, 3, or even 4 Justices, Democrats are again changing their tune. While Democrats objected to the Biden rule after Judge Garland’s nomination, now that President Trump will be choosing the next Justice, they are suddenly reticent to confirm any new judges! Some, like Senate minority leader Chuck Schumer are even suggesting that the Supreme Court could operate with only 8 justices!
Thankfully, Vice President Biden does not agree with his fellow Democrats. In an interview with PBS this past week Biden chided Democrats considering obstruction on Trump’s Supreme Court picks. Instead he argues that they should hold the hearings and then withhold their vote for his nominees.
No one is required to vote for the nominee. But they, in my view, are required to give the nominee a hearing and a vote…
I think the Democrats should not take up a — what I think is a fundamentally unconstitutional notion that the — that Republicans initiated 10 months ago. I think they should see who they nominate, and vote on them.