Senate Majority Leader Mitch McConnell (R-KY) cited what he called the “Biden rule” on several Sunday political talk shows as precedent for not holding hearings or a vote on Merrick Garland's nomination to the Supreme Court, which the Sunday show hosts did question. Yet the “rule” McConnell was referencing was, in fact, a call for a “compromise” nominee and was in reference to a hypothetical vacancy by resignation, not a vacancy caused by death.
President Obama Nominates Judge Merrick Garland To The Supreme Court
President Obama Named Judge Merrick Garland As His Nominee To The Supreme Court. On March 16, President Obama named Merrick Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit, to fill the vacancy on the Supreme Court. Garland has served on the D.C. Circuit since 1997. [The New York Times, 3/16/16]
Sunday Show Hosts Don't Question McConnell's Claim He Is Following Precedent Set By Vice President Biden To Block A Hearing Or Vote On Garland
McConnell On CNN's State Of The Union: “When Joe Biden Was Chairman Of The Judiciary Committee In '92, He Said If A Vacancy Occurred, It Would Not Be Filled.” On the March 20 edition of CNN's State of the Union, McConnell claimed that “in '92” Joe Biden created “the Biden rule” where “if a vacancy occurred, it would not be filled because of the pending election.” After the claim, host Dana Bash asked if Republicans would “pay a political price” for obstructing the nomination of Judge Merrick Garland (emphasis added):
DANA BASH (HOST): What if Democrats are right and this costs several Republicans in your caucus their seats and, maybe, even you the majority? Would it be worth it to keep a Democrat appointee off the Supreme Court?
MCCONNELL: Well, look, there's a lot of activity on this issue out in the country on both sides, and a lot of people who think this appointment ought to be made by the next president will be weighing in as well. And look, that's the principle. Who ought to make the decision? A lame-duck president on the way out the door, or the president we're in the process of electing right now? What is the tradition? It's been 80 years, 80, since a vacancy created in a presidential election year was filled. You have to go back to 1888, Grover Cleveland in the White House, to find the last time a vacancy created in a presidential year was filled by a Senate of a different party from the president. So we know what the tradition is, Dana. It's the Biden rule. When Joe Biden was chairman of the Judiciary Committee in '92, he said if a vacancy occurred, it would not be filled because of the pending election.
BASH: And you are convinced -- briefly, you are convinced that your Republican senators, who are in tough races in November, won't pay a political price for it, regardless of the history? [CNN, State of the Union, 3/20/16]
McConnell On NBC's Meet The Press: “What We Are Using Is The Biden Rule.” On the March 20 edition of NBC's Meet the Press, McConnell cited “the Biden rule” to assert that there is precedent to blocking Supreme Court nominees in a presidential election year. Host Chuck Todd responded by saying “it feels like there is hypocrisy on both sides,” to which McConnell responded by, again, citing then-Senator Biden from 1992 (emphasis added):
CHUCK TODD (HOST): Senator McConnell, I started my interview with Harry Reid with a similar quote from him back during the Bush years too. Essentially you guys have changed places in your position on Supreme Court vacancies, and it seems to me the only difference is the political party affiliation of the White House.
SEN. MITCH MCCONNELL (R-KY): Well there was no Supreme Court vacancy in 2008, and that's what we're talking about here, Chuck. You have to go back 80 years to find the last time a vacancy on the Supreme Court created during a presidential election year was filled. You have to go back to Grover Cleveland in 1888 to find the last time a presidential appointment was confirmed by a Senate of the opposite party when the vacancy occurred in a presidential year. We're talking about the Supreme Court here. The election is underway, and what we are using is the Biden rule. In 1992, when Joe Biden was chairman of the Judiciary Committee, he made the point that a vacancy, had it occurred in 1992, would not be filled. Now, Harry Reid, when he was leader in 2005, pointed out the Senate had no obligation under the Constitution to give a nominee a vote. And Chuck Schumer in 2007, 18 months before Bush's term was up, said if a vacancy occurred they wouldn't fill it. But we're talking about Supreme Court vacancies.
TODD: But in each of those occasions -- but Senator -- in each of those occasions Republicans at the time criticized those Senate Democrats for having that position. And frankly, that's what we're seeing here. It feels like there's hypocrisy on both sides. Democrats essentially don't want to confirm a Supreme Court justice if a Republican's doing it, and Republicans don't want to confirm a Supreme Court justice if a Democrat is doing it. Isn't that what we're staring at here?
MCCONNELL: Yeah nobody's been entirely consistent so let's just look at the history of it. It hasn't happened in 80 years and it won't happen this year. The principle involved here Chuck, when an election's underway, as Joe Biden was talking in 1992, an election is underway, the American people are about to weigh in on who's going to be the president. And that's the person, whoever that may be, who ought to be making this appointment.
TODD: You know you said something though, about three months ago, you said this. “My view is just because there's an election coming up doesn't mean you're not supposed to do anything.” You even noted, “We've had an election every two years right on schedule since 1788.” So I guess, when does a presidential term run out? When does the president lose his authority to make appointments, in your view? [NBC, Meet the Press, 3/20/16]
McConnell On ABC's This Week: “Joe Biden, In 1992 ... Laid Down The Biden Rule.” On the March 20 edition of ABC's This Week, McConnell asserted that then-Senator Biden, in “1992, when he was chairman of the Judiciary Committee, laid down the Biden rule.” McConnell continued, saying “the Biden rule” meant that “when a campaign is under way, no Supreme Court judge would be confirmed.” After McConnell's assertion, host George Stephanopoulos asked if McConnell was saying Garland would not get a hearing and vote, to which McConnell replied, “That's right” (emphasis added):
GEORGE STEPHANOPOULOS (HOST): You just heard Denis McDonough right there saying -- quoting you from your op-ed after the president was elected, saying the Senate's going to get back to work. He thinks the Senate should get to work and provide a hearing and a vote for Judge Garland. Any chance that's going to happen this year?
MCCONNELL: Well, the Senate has been very much at work for the last 15 months. We've passed a lot of legislation that the president has signed. The president's chief of staff knows we're very much at work. Look, the way Supreme Court justices have been handled in presidential election years is very clear. It's been 80 years since a vacancy created in a presidential election year was filled. You have to go back to 1888, Grover Cleveland was in the White House, to find the last time a vacancy created in a presidential year on the Supreme Court was confirmed by a Senate controlled by the party different from the president. So we know what their tradition is. Joe Biden, in 1992, when he was chairman of the Judiciary Committee, laid down the Biden rule. He said, when a campaign is under way, no Supreme Court judge would be confirmed.
STEPHANOPOULOS: Well, there haven't been that many examples, but you're saying clearly, there will be no hearing, no vote for Judge Garland this year?
MCCONNELL: That's right. [ABC, This Week, 3/20/16]
But Biden's 1992 Remarks Called For A “Compromise” Nominee, And Referred To A Hypothetical Vacancy By Resignation, Not A Vacancy Caused By Death
Joe Biden: Claims That He Opposed Filling A SCOTUS Vacancy In An Election Year Are “Not An Accurate Description Of My Views.” In a February 22 statement, Vice President Joe Biden said his 1992 comments were about “a hypothetical vacancy” and that in fact he “encouraged the Senate and the White House to 'work together to overcome partisan differences,'” which “remains [his] position today.” Biden also highlighted his record as chairman of the Senate Judiciary Committee, pointing out that “he presided over the process to appoint Justice Anthony Kennedy, who was confirmed to the Supreme Court in a presidential election year.” As reported by The New York Times on February 23, Biden's aides also pointed out that “he had been warning against filling a vacancy created by a voluntary resignation of a justice rather than a vacancy created by an unexpected death. In any event, no such vacancy occurred”:
Vice President Joe Biden released a statement Monday saying an excerpt of a speech he gave in 1992 does not accurately portray his views on the filling of a Supreme Court vacancy during an election year and was taken out of context.
Nearly a quarter century ago, in June 1992, I gave a lengthy speech on the Senate floor about a hypothetical vacancy on the Supreme Court," he said in the statement.
Some critics say that one excerpt of my speech is evidence that I oppose filling a Supreme Court vacancy in an election year. This is not an accurate description of my views on the subject.
But Biden said in the statement Monday that in that same 1992 speech, he encouraged the Senate and the White House to “work together to overcome partisan differences to ensure the Court functions as the Founding Fathers intended.
”That remains my position today," he said.
Biden then touted his record as Judiciary Committee chairman, claiming it's “hard to beat.” He said he presided over the process to appoint Justice Anthony Kennedy, who was confirmed to the Supreme Court in a presidential election year.
“While some say that my comments in June 1992 contributed to a more politicized nomination process, they didn't prevent the Senate from fulfilling its constitutional duties, because there was no vacancy at the time,” he said in the statement.
“During my career on the Judiciary Committee, I ensured the prompt and fair consideration of nine Supreme Court Justices and the current Senate has a constitutional duty to do the same.” [The Hill, 2/22/16; The New York Times, 2/23/16]
New York: Biden Did Not Advocate “Flat-Out Blocking The President From Any Nomination, However Moderate Or Well-Qualified.” As explained by New York magazine's Jonathan Chait, “never before in American history has the Senate simply refused to let the president nominate anybody at all simply because it was an election year,” and claims to the contrary are “demonstrably false.” Chait added that attempts to equate past Democratic positions with the current Republican obstructionism also fail because “the clear fact is that [Democrats] didn't kill that system and they didn't create the new one that is taking its place. The current Senate Republicans did”:
A second example of Democrats allegedly advocating the current Republican position comes from recently unearthed 1992 remarks by Joe Biden, then a senator. But Biden was not advocating a blockade of any nomination by then-president George Bush. He was insisting that Bush compromise ideologically. “I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate,” Biden said. “Therefore I stand by my position, Mr. President, if the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter.”
It is certainly true that Biden, like Schumer, was demanding broader latitude for the Senate. Both these remarks are within the historic tradition of senators tussling over how much say their chamber should have in the ideology of a new justice. But neither of them advocated flat-out blocking the president from any nomination, however moderate or well-qualified.And maybe the old system, in which social norms dictate that the Senate allow the president to put his ideological imprint on the Court, is simply untenable in a polarized age. Maybe that system was bound to perish. (That's the case I made.) And maybe the Democrats would have wound up becoming the party to kill that old system if they found themselves in the position Republicans currently occupy. But the clear fact is that they didn't kill that system and they didn't create the new one that is taking its place. The current Senate Republicans did. [New York, 2/23/16]
Politico: In Biden Speech Highlighted By Republicans, He “Called For A 'Compromise' Pick.” In a February 22 Politico article, Sarah Wheaton explained that the excerpts of Biden's remarks, which “Republicans seized on,” “ignored a passage deep in the transcript where Biden called for a 'compromise' pick, much as he's done in the past week”:
In the aftermath of Antonin Scalia's death, Senate Majority Leader Mitch McConnell was quick to say that any nominee to fill the vacancy should wait until after the coming election.
The clips and quotes Republicans seized on, however, ignored a passage buried deep in the transcript where Biden called for a “compromise” pick, much as he's done in the past week.
“I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate,” Biden also said at the time. “If the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter. But if he does not, as is the President's right, then I will oppose his future nominees as is my right.” [Politico, 2/22/16]