In 1992, then-Senate Judiciary Committee chairman Joe Biden launched a preemptive attack on any nominee President George H.W. Bush named to the Supreme Court, warning that if Bush tapped someone, Biden’s committee “should seriously consider not scheduling confirmation hearings on the nomination . . . until after the political campaign season is over.”
While Biden did not get the chance to kill a Supreme Court nomination that year, he did kill the nomination of a future chief justice of the Supreme Court — John G. Roberts Jr.
On Jan. 27, 1992, President Bush nominated Roberts to serve on the U.S. Court of Appeals for the District of Columbia Circuit. Roberts was immensely qualified for the job. He had served since 1989 as principal deputy solicitor general of the United States, arguing 39 cases before the Supreme Court, making him one of the country’s most experienced Supreme Court litigators.
But his nomination to the federal bench was dead on arrival at Biden’s Senate Judiciary Committee. Biden refused to even hold a hearing on Roberts’s nomination, much less a vote in committee or on the Senate floor. Roberts’s nomination died in committee and was withdrawn on Oct. 8, 1992. It was only about a decade later that he was re-nominated to the federal bench by President George W. Bush — and we all know the rest of the story.
Roberts was not alone in being denied a hearing or a vote by Biden. According to a report by the Congressional Research Service (CRS), in 1992 Biden killed the nominations of 32 Bush appointees to the federal bench without giving them so much as a hearing. And that does not count an additional 20 nominations for the federal bench where Biden did not hold hearings that year, which CRS excluded from its count because they reached the Senate “within approximately [four] months before it adjourned.”
So none were cases in which time simply ran out. There was plenty of time to consider the nominations. But Biden refused. Why? According to an article in Texas Lawyer magazine, cited in the CRS report, some of the “nominees reportedly fell victim to presidential election year politics, as Democrats hoped to preserve vacancies in expectation that their presidential candidate would win election.”
That’s not all. In 1988, then-Chairman Biden also killed the nominations of nine candidates for the federal bench appointed by President Ronald Reagan without so much as a hearing. The New York Times reported at the time that “Democrats were determined to bury” some of the nominations because, as one liberal lobbyist told the paper, “the appellate seats were too precious to for us to give up” in a presidential election year.
Biden’s defenders claim that he made his 1992 remarks about killing a Supreme Court nominee in June of an election year, not February. But some of the nominees Biden killed that election year had been nominated as early as January 1991 — 17 months before the presidential election. And some of the nominees he killed in 1998 had been nominated as early as February 1987 — 16 months before voters went to the polls to choose a new president.
Biden’s record of election-year judicial obstruction came to light in 1997, when he tried to force then-Senate Foreign Relations Committee Chairman Jesse Helms to hold a hearing on the nomination of Massachusetts Gov. William Weld to be U.S. ambassador to Mexico (I was on Helms’s committee staff at the time). When Helms declared Weld’s nomination dead on arrival, Biden and other committee members forced Helms to convene a committee meeting, which they hoped would take up Weld’s nomination. Instead, Helms turned the meeting into a lecture on the “History of Presidential Nominees Not Receiving Confirmation Hearings.” He presented 10 pages of charts prepared by CRS detailing 154 presidential nominations during the previous decade that had been killed without a hearing — including dozens of judicial nominations that Biden had killed.
When challenged by Helms on his record, Biden explained that the nominees in his case were different than Weld’s, because they were nominated in an election year. “When I was chairman of the Judiciary Committee,” he admitted to Helms, “there were a number of judges who were left at the gate who did not in an election year get through.”
His point was that this was normal Senate practice — and he is right. Both parties have a history of killing judicial nominations without a hearing in an election year, particularly in cases where the nomination would shift the balance of the court. The CRS report notes that in 1995 and 1996, when Republicans controlled the Senate, they killed 14 of President Bill Clinton’s nominees to the federal bench without a hearing.
The bottom line is that what Republicans are doing today is far from unprecedented. To the contrary, it is the norm. There is a graveyard filled with judicial appointments killed without a hearing by both Republicans and Democrats in an election year.
Just ask John Roberts.