Senate Republicans determined to block President Obama’s promised Supreme Court nominee embraced an unlikely ally Monday: Vice President Biden.
More precisely, they embraced a fourth-term Sen. Joseph R. Biden Jr. (D-Del.) who, while serving in 1992 as chairman of the Senate Judiciary Committee, delivered a sprawling, 90-minute floor address that included a call for halting action on Supreme Court nominees in an election year.
Biden delivered his remarks in late June, as the court approached the end of its term — the traditional season for retirement announcements — and as President George H.W. Bush waged an uphill campaign for a second term amid an economic slowdown and sinking approval ratings.
Were there a vacancy, Biden argued, 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.”
“Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself,” he continued. “Where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue.”
Biden, as vice president, has called in recent days for the Senate to take up the nomination Obama promises to make to replace Justice Antonin Scalia, who was found dead Feb. 13 in Texas.
“To leave the seat vacant at this critical moment in American history is a little bit like saying, ‘God forbid something happen to the president and the vice president, we’re not going to fill the presidency for another year and a half,’ ” he told Minnesota Public Radio on Thursday.
Biden said Monday in a statement that the 1992 speech pertained to “a hypothetical vacancy” and that the excerpt Republicans highlighted was “not an accurate description of my views on the subject.”
“In the same statement critics are pointing to today, I urged the Senate and White House to work together to overcome partisan differences to ensure the Court functions as the Founding Fathers intended,” he said. “That remains my position today.”
Republicans wasted no time highlighting Biden’s long-forgotten remarks. The current Judiciary Committee chairman, Sen. Charles E. Grassley (R-Iowa), rose on the Senate floor Monday afternoon to deliver fulsome praise for Biden and the newly unearthed speech.
Grassley set out what he called “Biden Rules”: There ought to be no presidential Supreme Court nominations in an election year, and if there is such a nomination, the Senate ought to “seriously consider” not holding hearings on the nominee.
In the 10 days since Scalia’s death, politicians of both parties have been forced to square their current positions on whether or not to confirm Obama’s promised nominee with their past statements on judicial nominations.
For instance, Senate Majority Leader Mitch McConnell (R-Ky.), who now favors leaving the nomination to Obama’s successor, has been confronted with a 45-year-old law review article in which he suggested that “political matters” should not be relevant to the Senate’s consideration of a Supreme Court nomination.
But Biden’s remarks were especially pointed, voluminous and relevant to the current situation. Embedded in the roughly 20,000 words he delivered on the Senate floor that day were rebuttals to virtually every point Democrats have brought forth in the past week to argue for the consideration of Obama’s nominee.
Biden anticipated, for instance, that he would be accused of blockading an embattled Republican president’s nominees out of political expediency. “That would not be our intention,” he said. “Instead, it would be our pragmatic conclusion that once the political season is under way, and it is, 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.”
And he dismissed fears that an eight-member court could not effectively function: “The cost of such a result — the need to reargue 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 would assuredly be a bitter fight, no matter how good a person is nominated by the president.”
As Biden’s remarks circulated Monday, one Republican senator broke with his colleagues to call for hearings and an up-or-down vote on Obama’s nominee. Sen. Mark Kirk of Illinois, who faces a difficult campaign this year in a Democratic state, said in a Chicago Sun-Times op-ed that he could support “a nominee who can bridge differences, a nominee who finds common ground and a nominee who does not speak or act in the extreme.”
But, by and large, Kirk’s GOP colleagues have held the line and have refused to even entertain the possibility of confirming a justice this year. One Judiciary Committee Republican who has backed some Obama nominees, Jeff Flake of Arizona, said Monday he would not vote to confirm a replacement for Scalia this year.
“This is not about the potential nominee,” Senate Majority Whip John Cornyn (R-Tex.) said Monday. “This is about who chooses.”
At the White House, press secretary Josh Earnest said President Obama made additional phone calls in recent days to lawmakers from both parties, including some on the Senate Judiciary Committee, to discuss his ongoing deliberations and plans for selecting a nominee. But Earnest declined to offer specifics on the timeline or whom Obama is considering.
Sen. Susan Collins (R-Maine), one of just two currently serving Republicans who supported both of Obama’s previous Supreme Court picks, said the White House has so far “made no outreach whatsoever” to discuss a path forward for a nominee.
David Nakamura and Kelsey Snell contributed to this report.