The Biden Rules
Supreme Court Vacancies in Presidential Election Years
We find ourselves in a very unusual situation. We are in a presidential election year. The campaign for our next commander-in-chief is in full swing. Voting has begun.
Some candidates for president have dropped out of the race after disappointing finishes in the primaries.
Republicans hold the gavels in the Senate.
And a term limited Democrat in the twilight of his presidency occupies the White House.
It’s within this context that our nation has lost one of the great legal minds ever to serve on the court.
Justice Scalia’s death marks the first time a sitting Supreme Court Justice has passed away in a presidential election year in 100 years. And it’s the first time a sitting Supreme Court Justice passed away in a presidential election year during divided government since 1888.
As my colleagues and I grapple with how the Senate Judiciary Committee should approach this set of circumstances, we seek guidance and wisdom from a number of sources. These include history, practice and good sense.
And yes, we look to what former committee chairmen have had to say.
In reviewing this history, I’m reminded of remarks a former Chairman delivered during an election year.
That former Chairman tackled this knotty problem. And he described what should happen if a Supreme Court vacancy arises during a presidential election year.
In fact, this Chairman’s guidance is particularly instructive because he delivered his remarks in a presidential election year, during a time of divided government.
The presidential election year was 1992.
We had no Supreme Court vacancy.
No justice had passed away unexpectedly.
No justice had announced his or her intention to retire.
Rather, it was the fear of an unexpected resignation that drove this former Chairman to the Senate floor one day before the end of the court’s term.
Near the beginning of his lengthy remarks, this Chairman — who was and remains a friend — noted another speech he’d delivered several years prior on the ‘advice and consent’ clause.
That speech — from July of 1987 — was titled “The Right and Duty of the Senate to Protect the Integrity of the Supreme Court.”
This Chairman delivered those remarks in 1987 as the Senate embarked on one of its saddest episodes:
The unfair and ugly treatment of an exceptional jurist, Judge Robert Bork.
I don’t reference that episode to open old wounds. Only to provide context.
Because it was in that speech, during that debate, that this former Chairman defended the Senate’s constitutional role in the appointments process.
It was there, in that speech, during that debate in 1987, that this former Chairman reached back to an earlier debate from an especially warm summer in Philadelphia, 200 years prior.
He reached back to the Constitutional Convention, because it was then and there that individuals like Rutledge of South Carolina, Wilson of Pennsylvania, Gohram of Massachusetts, and of course Madison of Virginia, debated how our young nation’s judges were going to be appointed.
It was his examination of the debate in 1787 that led this former Chairman to declare, 200 years later, nearly to the day:
“Article II, Section 2, of the Constitution clearly states that the President ‘shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court.’ I will argue that the framers intended the Senate to take the broadest view of its constitutional responsibility. I will argue that the Senate historically has taken such a view.”
Now, that discussion on the “advice and consent” clause transpired in 1987. But as I said, it was during a presidential election year in 1992 that my friend, this former Chairman took to the Senate floor.
Why did he begin his remarks in 1992 by referencing an earlier speech on the ‘advice and consent’ clause?
I will say it wasn’t only because senators sometimes like to quote the wise words they once spoke.
My friend referenced his own remarks on the ‘advice and consent’ clause because he wanted to remind his colleagues of the Senate’s constitutional authority to provide, or withhold, consent, as the circumstances may require.
And he wanted to remind his colleagues of the Senate’s constitutional authority before he addressed the real reason he rose to speak in 1992:
The prospect of a Supreme Court vacancy in a presidential election year.
After discussing confirmation debates that had not occurred in presidential election years, my friend turned to some of those that had:
“Some of our nation’s most bitter and heated confirmation fights have come in presidential election years. The bruising confirmation fight over Roger Taney’s nomination in 1836; the Senate’s refusal to confirm four nominations by President Tyler in 1844; the single vote rejections of nominees Badger and Black by lameduck Presidents Fillmore and Buchanan, in the mid-19th century; and the narrow approval of Justices Lamar and Fuller in 1888 are just some examples of these fights in the 19th century.”
He continued:
“Overall, while only one in four Supreme Court nominations has been the subject of significant opposition, the figure rises to one out of two when such nominations are acted on in presidential election years.”
This former Chairman then outlined some additional history of Supreme Court nominations in presidential election years.
He emphasized that in four vacancies that arose during a presidential election year, the President exercised restraint and withheld from making a nomination until after the election.
One of those Presidents was Abraham Lincoln.
Ironically, like President Obama, our 16th President was a lawyer and called Illinois home.
But unlike our current President, Abraham Lincoln didn’t feel compelled to submit a nomination before the people had spoken in November of 1864.
Eventually, my friend got to the heart of the matter:
“Should a justice resign this summer and the President move to name a successor, actions that will occur just days before the Democratic Convention and weeks before the Republican Convention meets, a process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the President, to the nominee, or to the Senate itself.”
My friend went on to say:
“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 name a nominee until after the November election is completed.”
And, what is the Senate to do if a president ignores history, good sense, and the people, and submits a nominee under these circumstances?
Here again, is my good friend’s answer:
“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.”
But what of the likely criticisms that will be lobbed at the committee and the Senate if it were to choose this path?
My friend, the former Chairman continued:
“I am sure, Mr. President, having uttered these words some will criticize such a decision and say it was nothing more than an attempt to save the 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 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…action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution.”
But won’t that impact the court? Can it function with eight members for some time? Won’t it create a “crisis”?
Not remotely. My friend considered this as well, and appropriately dismissed it:
“Others may fret that this approach will leave the Court with only eight members for some time. But as I see it, Mr. President, the cost[s] of such a result, the need to re-argue three or four cases that will divide the Justices four to four, are quite minor compared to the cost that a nominee, the President, the Senate, and the Nation would have to pay for what assuredly would be a bitter fight, no matter how good a person is nominated by the President, if that nomination were to take place in the next several weeks.”
Let me read that last part again:
“Others may fret that this approach will leave the Court with only eight members for some time. But … the cost[s] of such a result … are quite minor compared to the cost that a nominee, the President, the Senate, and the Nation would have to pay for what assuredly would be a bitter fight, no matter how good a person is nominated by the President.”
That’s well said.
This former Chairman is eloquent, where I’m plain spoken.
I’d put it this way: It’s the principle that matters, not the person.
My friend concluded this section of his remarks in this way:
“In the end, this may be the only course of action that historical practice and practical realism can sustain.”
These are the Biden Rules.
The Biden Rules recognize “the framers intended the Senate to take the broadest view of its constitutional responsibility.”
The Biden Rules recognize the wisdom of those presidents — including another lawyer and former state lawmaker from Illinois — who exercised restraint by not submitting a Supreme Court nomination before The People had spoken.
The Biden Rules recognize the court can operate smoothly with eight members for some time, and “the cost of such a result, the need to re-argue three or four cases that will divide the Justices four to four, are quite minor compared to the cost that a nominee, the President, the Senate, and the Nation would have to pay for what assuredly would be a bitter fight.”
The Biden Rules recognize that under these circumstances, “[the President] should consider following the practice of a majority of his predecessors and not name a nominee until after the November election is completed.”
The Biden Rules recognize that under these circumstances, “[It does not] matter how good a person is nominated by the President.”
The Biden Rules recognize that “once the political season is under way … action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and is central to the process.”
The Biden Rules recognize that “Senate consideration of a nominee under these circumstances is not fair to the President, to the nominee, or to the Senate itself.”
The Biden Rules recognize that under these circumstances, “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
Vice President Biden is a friend. And I say that with the utmost sincerity.
I served with him in the Senate and on the Judiciary Committee for nearly 30 years.
He is honorable. He is sincere.
He is loyal to the President he now serves.
Because I know these things about him, I can say with confidence that he will enthusiastically support the President, and any nominee he submits to the Senate.
But, I also know this about Vice President Biden.
He may serve as Vice President, but he remains a United States Senator.
That’s why, when he rose to speak in this Chamber for the last time, he shared this with his colleagues:
“I may be resigning from the Senate today, but I will always be a Senate man. Except for the title of ‘father,’ there is no title, including ‘Vice President,’ that I am more proud to wear than that of United States Senator.”
If the President of the United States insists on submitting a nominee under these circumstances, Senator Biden, my friend from Delaware, the man who sat at a desk across the aisle and at the back of this Chamber for more than 35 years, knows what the Senate should do.
And, I believe, in his heart of hearts, he understands why it must.
