Senate Majority Leader Mitch McConnell’s Invocation of the ‘Biden Rule’ to Block Supreme Court Nomination

A deeper look at the historical inconsistencies in the Republicans’ use of Biden’s 1992 speech to justify unilateral sanction against a nomination.

This morning, President Obama made the official announcement for the nomination of federal judge Merrick Garland to the Supreme Court. Garland serves asthe current Chief Justice on the D.C. Circuit Court of Appeals, where he’s held a post since 1997. He is widely perceived as a safe, “consensus nominee” in midst of a Republican storm against the prospect of any nomination by President Obama.

Directly proceeding this announcement, Senator Mitch McConnell took to the Senate floor to deliver a speech in opposition to the nomination process. Like his fellow Republican Senator Grassley, McConnell invoked a selection from Biden’s 1992 speech as head of the Senate Judiciary Committee. In this clip, Biden implores the Senate to postpone any potential nomination hearings until after the election season. By invoking what he believed to be a historical precedent, McConnell repeatedly defended his position with the assurance that “We are talking about a principle, not a person.” His burden of proof was simple. Recycling Biden’s original words in our current political context, he declared 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.”

Upon closer examination of the Biden’s Senate floor standing in 1992, one cannot but sense that these words were displaced to force an equivalence between two discrete historical moments, and to align two distinct political motives.

I might agree, as a hypothetical exercise, that the opening of a supreme court vacancy months before the general election could pose legitimate questions regarding the confirmation of a Supreme Court nominee. But a debate on this matter undoubtedly expands into the question of whether it is the prerogative of the people to democratically elect Justices to the Supreme Court. As Republicans have recently argued, waiting until the election of a new President gives power to the American people to decide on the next Justice.

Therefore, do we take our general election of a President as a de facto election of Justices to the Supreme Court? Or, does the democratic election of a President endow him with the authority to assign of new Justices to the court when the vacancies arise? Given that Article II of the Constitution stipulates the nomination of Justices as an executive obligation, and not as an arbitrary exercise of power, the latter interpretation seems closer to what the law entails.

Then what logic holds if the President’s duty to appoint a Justice should only be contested during an election year, but not at other times? Surely, no one can make the convincing case that the President’s powers must be limited during his last twelve months in office. Are the Republicans arguing for a pseudo-democratic election of Justices to the Supreme Court? If so, then they should demand that all Justices be elected, and that Article II of the Constitution be amended. If this is a naive reading of the McConnell-lead opposition to a Supreme Court nomination, what possible motive remains is the unabashedly weak disguise of a Republican fear of a left-leaning Supreme Court, controlling for partisan outcomes under the guise of a bipartisan, principled fight.

Since Justice Scalia’s unexpected passing on February 13th, Republicans in the Senate have consistently threatened that they will block the confirmation of any nominee. Meanwhile, Joe Biden’s speech in 1992 belonged to a larger push for a reform to the nomination process precisely to avoid the kind of bipartisan disagreement over filling a vacancy during an election year. It is quite a different positional statement for the Majority Leader of the Senate to issue statements threatening unilateral objection to any Supreme Court nominee, than for the leader of the Senate Judiciary Committee, whose job it is to oversee such reforms, to suggest a policy in order to avoid gridlock and bad-faith politics.

“Others will say that I am not being contentious enough. They suggest that as the court has moved so far to the right already, that it is too late for a progressive Senate to accept compromise candidates from a conservative administration. They would argue that the only people we should accept are liberal candidates, which are not gonna come, nor what it is [sic] reasonable to expect them to come from a conservative Republican president. But 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. Therefore I stand by my position, Mr. President: If the President consults and cooperates with the Senate, or moderates his selection absent consultation, then his nominees may enjoy my support, as did Justice 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.

At the time, Biden’s speech responded to a succession of some of the most contentious nomination hearings in the Senate, including the unpopular nominations of Chief Justice William H. Rehnquist in 1987 and Justice Clarence Thomas in 1991. In an ironic sense, our political context mirrors the circumstances of 1992 — the ongoing shift of the Supreme Court’s left-right balance and the eminent three-way presidential race in what Biden foresaw as the “one of the bitterest, dirtiest political campaigns…in modern times.”

Yet, Biden’s original motive and tone in his speech in no way reflects the kind of uncooperative, bad faith undercutting of the President’s rightful authority. Biden accepted that political shifts on the Supreme Court are an inevitable outcome of partisan politics, and he proved it with his votes for Justice Kennedy and Justice Souter. His reform suggestion sought to avoid the kinds of behaviors produced by a belligerent oppositional Senate majority, the kind that we are seeing today. Seeking the advise and consent of the Senate puts in place an informal procedure that ensures the reasonableness of Court appointments. However, it is about time that both sides adjust to the political and historical reality that the left-right balance on the Supreme Court will always be subject to the partisan turnovers of the presidency.

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