On June 25, 1992, Biden, who was then chairman of the Judiciary Committee, rose on the Senate floor to proclaim: “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 [George H.W.] 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.” He went even further, vowing that the president could not even count on his committee to schedule hearings “until after the political campaign season is over.” Biden at the time gave the back of the hand to the notion that Democrats were holding off on consideration of a nominee to preserve a pick for a new president, whom they hoped would be a Democrat. “If that were the course we were to choose as a Senate, to not consider holding hearings until after the election, instead, it would be our pragmatic conclusion 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,” he said. “That is what is fair to the nominee, and essential to the process.”
Biden made a good, subsidiary point there that has been largely overlooked. What respected jurist is going to put himself or herself through that process — even just the public record perusing — if there is no hope of confirmation? These have come to be bloody affairs, only worth the price in exchange for a lifetime appointment on the court. Few are likely to volunteer to undertake the ordeal when the prospect of confirmation is nonexistent.
Moreover, if the president were to dredge up someone very worthy of a Supreme Court nomination — someone Hillary Clinton would be delighted to pick — President Obama would only be giving Republicans in the Senate and outside interest groups nearly a year to prepare if Clinton wanted to renominate such a person. That does neither Clinton nor a prospective nominee any favors.
In point of fact, with contested presidential primaries in both parties, a slew of bad news foreign policy stories and usual anxiety about the economy, the issue of Justice Antonin Scalia’s replacement is getting pushed aside in news broadcasts and off the front pages of many newspapers. It is therefore increasingly likely that the Biden-Schumer-McConnell tradition of waiting for a presidential election will hold. As it turns out, the public seems not to care one way or another.