Joe Biden in 1987: President Should Weigh the Senate’s ‘Prevailing Views’ about High Court

The U.S. Senate has confirmed only five Supreme Court justices during presidential election years since 1912 – and the last time it happened current Vice President Joe Biden defended the Senate’s constitutional right to act as “a forceful constitutional counterweight” to the president’s nominee.

“The president exercises better judgment when he considers the prevailing views of the Senate, and the American people, before making a nomination,” Biden, D-Del., said during the confirmation hearings of current Justice Anthony Kennedy. He added that “if the president does consider the views of the Senate and the people in making the nomination, the Senate may not need to act as such a forceful constitutional counterweight.”

Sens. Ted Kennedy (left) and Joe Biden (right) speak to Supreme Court nominee Anthony Kennedy in 1987.

Although Kennedy took his seat on the high court in 1988, the last year of Ronald Reagan’s presidency, his selection dated back to November 1987. He was Reagan’s third choice, nominated after two of the most contentious clashes between a president and the Senate in Supreme Court history. As chairman of the Senate Judiciary Committee, Biden was one of the main antagonists in those confrontations over Robert Bork and Douglas Ginsburg.

Biden hired two consultants to pick apart Bork’s record, and the subsequent “Biden Report” helped sink the nomination. By a vote of 42–58, the Senate rejected Bork as the replacement for Justice Lewis Powell. Ginsburg’s name didn’t even make it to the Senate. Nine days after getting the nod, he withdrew amid a controversy over his previous marijuana use.

Those two bruising battles over conservatives in the summer and fall of 1987 prompted Reagan to change course with his next nomination. In November he tapped Kennedy, a jurist with a more centrist record, for the job.

When he kicked off the confirmation hearings a few weeks later, Biden said he did so in a “calmer atmosphere” that lacked the “confrontational spirit” of the Bork and Ginsburg nominations. But he also suggested that Bork’s confirmation hearings represented the new normal.

“The Bork hearings set high standards for this committee, the Senate and the president in the appointment of a Supreme Court justice,” Biden said in his opening statement. “From those hearings have emerged lasting principles for the nomination and confirmation of members of the Supreme Court.”

While acknowledging that presidents have the right to nominate justices who are “philosophically compatible” with them, Biden hinted that the Democratic-controlled Senate would not let Reagan push through a nominee with a political agenda. “This is not anything other than an attempt to have a dialogue with you as to who you are, what you stand for, why you want to be on the court,” he told Kennedy.

The Judiciary Committee completed three days of hearings in December 1987 and approved the nomination on Jan. 27, 1988. By a vote of 97–0, the Senate confirmed Kennedy as a Supreme Court associate justice on Feb. 3.