Vice President Biden will make his most forceful call yet Thursday for the confirmation of Supreme Court nominee Merrick B. Garland in a speech set to be delivered to students and faculty at Georgetown University Law Center.
“The Constitution states it plainly and clearly,” Biden writes in a Medium post published Monday morning and shared in advance with The Washington Post. “All 100 senators have a duty to provide advice and consent on nominees, and help determine who sits on our nation’s highest court. … The full United States Senate must be able to work its will.”
Biden has become a prominent figure in the battle over filling the vacancy created by Justice Antonin Scalia’s death last month– though not in the way he might prefer. Within days, Republican senators seized on a lengthy 1992 speech that Biden, then chairman of the Senate Judiciary Committee, had delivered on the Senate floor, arguing against the consideration of any Supreme Court nominee in that election year.
GOP leaders have been quick to cite Biden’s remarks ever since to rebut Democrats’ arguments that the Senate is obligated to take up President Obama’s nominee. Senate Majority Leader Mitch McConnell, for instance, mentioned the “Biden rule” in all four of the talk-show appearances he made Sunday.
“What we are using is the Biden rule,” he said on NBC’s Meet the Press. “He made the point that a vacancy, had it occurred in 1992, would not be filled.”
In the Medium post, Biden gave a preview of his Thursday remarks, arguing that Senate Republicans “are failing to fulfill their Constitutional obligation” and noted that during his 36 years in the U.S. Senate — including eight years as Judiciary chairman — “every single Supreme Court nominee got a hearing, a committee vote, and a floor vote. Period.”
“[T]here is nothing in the Constitution or our history to support the view that no nominee should be voted on in the last year of a presidency,” he writes, echoing points he made in a March 3 op-ed published in The New York Times.
The 1992 speech came near the close of the year’s Supreme Court term, amid speculation that a justice might retire that year in hopes of having Republican President George H.W. Bush nominate his replacement. There was no retirement, and hence the Democratic Senate was never faced with the actual dilemma of what to do with an election-year nomination.
But Biden at the time said Bush should “not name a nominee until after the November election is completed,” and if he did, “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
Those words have proven to be a persistent thorn in the sides of Senate Democrats this year, who have been forced to rebut a respected former colleague in arguing for consideration of Obama’s court nominee.
During a Judiciary Committee meeting earlier this month, for instance, Sen. Al Franken (D-Minn.) argues that Biden “talking about … somebody resigning to game the system” — in other words, a Republican-leaning justice voluntarily retiring so a Republican president would choose his successor. “We are talking here about someone who is replacing a justice who has died,” Franken said. “No one dies to game the system.”
In the Medium post, Biden points to another part of the 1992 speech: “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 [Anthony Kennedy] and [David Souter]. But if he does not, as is the President’s right, then I will oppose his future nominees as is my right.”
“That remains my position today,” Biden writes.
Writing on a day when activists across the country are planning protests of the GOP blockade, Biden says the speech will go beyond the op-ed he has already published to touch on the “real-life consequences” of an eight-member court divided 4-4 along ideological lines: “It’s dangerous. And every single American needs to know what it would mean.”
Biden also writes that, in the speech Thursday, he will “speak squarely to my colleagues in the Senate.”
“Take a look at the argument you’re making here. Consider, truly, whether it’s good for the American people and the country. Whether it does right by the Constitution. Whether it respects this sacred institution,” he writes. “Because the track you’re on is a loss for the American people — the people who elected you to act in their best interests — no matter how you look at it. Do the right thing.”