The Republican-dominated Senate’s intractable decision not to vote or even hear the President’s nominee for the Supreme Court is obstinate and perverse.
By refusing to vote on or even hear the case for his nomination, the Senate is engaging in a zero-sum game in which the stakes will only rise with their prolonged, rigidly uncompromising position.
Senate Majority Leader Mitch McConnell (R-KY) has invoked Vice President Biden’s own words from 1992 when George H.W. Bush was president and Biden was chairman of the Senate Judiciary Committee, to explain why he intends to block President Barack Obama’s Supreme Court pick in an election year.
The so-called “Biden Rule,” which allegedly justifies the Senates position to not hear the nomination in an election year, does not in fact provide a precedent.
Biden presided over the nomination hearing of Clarence Thomas, a conservative judge, to the Supreme Court in 1991. Biden’s floor speech was on June 25, 1992, more than three months later in the election cycle than it is now. He said,
“Mr. President, where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is a partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue. As a result, 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.”
There was no Supreme Court vacancy to fill. There was no nominee to consider. He continued, “Some will criticize such a decision and say it was nothing more than an attempt to save a seat on the court in the hopes that a Democrat will be permitted to fill it. But that would not be our intention, Mr. President, if that were the course we were to choose in the Senate — to not consider holding hearings until after the election. Instead, it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.”
The Senate never took a vote to adopt a rule to delay consideration of a nominee until after the election. Nonetheless, Biden took to the floor in a speech addressing the Senate president to urge delay if a vacancy did appear. But he didn’t argue for a delay until the next president began his term, as McConnell is doing. He said the nomination process should be put off until after the election, which was on Nov. 3, 1992.
Perhaps McConnell should look to a real precedent; of the seven Supreme Court Justices to be nominated in a presidential election year, only two have ever been denied while the Senate has never refused to at the very least hear a case for nomination.
Merrick Garland, a 19-year veteran of the DC Circuit, is a moderate heterodox liberal nominee not especially known for his progressive ideology. The Senate’s position is made even more tenacious by the irony that nominating Garland could soon be in the Republican’s strategic interest.
Garland, 63, is the oldest Supreme Court nominee since President Nixon tapped Lewis F. Powell Jr. in 1971. The next president’s nominee could easily be much younger—and therefore likely to serve longer on the Supreme Court— and more liberal.
IMAGE TAKEN from nbcnews.com
