Conservatives opposed to consideration of a Supreme Court nominee to fill the seat vacated by the death of Justice Antonin Scalia until after the General Election and Inauguration of a new President are somewhat gleefully sharing this video released today by C-SPAN of a 1992 speech by then Senator Joe Biden, who at the time was the Chairman of the Senate Judiciary Committee, in which he spoke out against the idea of President George H.W. Bush filling any potential Supreme Court vacancy before an election:
During a 1992 Senate floor speech, Joe Biden said President George H. W. Bush should wait to fill any Supreme Court vacancies until after the presidential election.
“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, and not name a nominee until after the November election is completed,” Biden said at the time.
CSPAN on Monday posted a clip of the vice president’s remarks, given when Biden was serving as a Democratic senator from Delaware. The floor comments were made on June 25, months before the 1992 presidential election.
There were no vacancies on the Supreme Court at the time of Biden’s comments, but his remarks are sure to be scrutinized given the current debate about filling the court vacancy created by Justice Antonin Scalia’s death.
President Obama is expected to offer his nomination in the coming weeks, but Senate Republicans have given mixed messages over whether they will allow even a hearing on the nominee.
Several Republicans have argued that filling Scalia’s vacancy should be punted until after the 2016 election.
Democrats have argued that it would be wrong for the Senate to not hold hearings and votes on a nominee.
But Biden himself in 1992 said the Senate Judiciary Committee should “seriously consider not scheduling confirmations hearings on the nomination until after the political campaign season is over.”
“I sadly predict, Mr. President that this is going to be one of the bitterest, dirtiest presidential campaigns we will have seen in modern times,” he said. “I’m sure Mr. President, after having uttered these words some, some will criticize such a decisions and say it was nothing more than an attempt to save a seat on the court in hopes that a Democrat will be permitted to fill it.”
Here’s the video and transcript: (Transcript via The Volokh Conspiracy)
Sen. Joe Biden in 1992 says President Bush should "not name a nominee until after the November election…" #SCOTUShttps://t.co/setQGLzePt
— CSPAN (@cspan) February 22, 2016
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 the majority of his predecessors and not, and not name a nominee until after the November election is completed.
The senate too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. 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 ever — until after the political campaign season is over.
And I sadly predict, Mr. President, that this is going to be one of the bitterest, dirtiest presidential campaigns we will have seen in modern times.
I’m sure, Mr. President, after having uttered these words, some, some will criticize such a decision and say that it was nothing more than an attempt to save a seat on the court in hopes that a Democrat will be permitted to fill it. But that would not be our intention, Mr. President, if that were the course we were to choose as a senate to not consider holding the 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. That is what is fair to the nominee and essential to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution.
And here’s the C-SPAN Tweet itself:
Sen. Joe Biden in 1992 says President Bush should "not name a nominee until after the November election…" #SCOTUShttps://t.co/setQGLzePt
— CSPAN (@cspan) February 22, 2016
One could make the case, I suppose, that Biden’s remarks, coming as they did in June of the election year rather than February carry a different weight because they came far closer to the election than we stand today. At the same time, though, these remarks stand together with those made by New York Senator Chuck Schumer, the incoming leader of the Senate Democratic Caucus, in 2007 where he argued that the Senate should decline to consider a nomination sent by President Bush during the final year of his Presidency. They also stand as confirmation of my observation that, by and large, the propriety of an action such as the one Senate Republicans are contemplating in response to a potential nomination by President Obama depends largely on which side of the political argument you happen to fall at a given time. In 1992 and 2007, it was Democrats arguing that a Republican President should refrain from acting until the American people have had a chance to speak in an election. This time, it’s Republicans making that argument. The fact that neither President Bush had the opportunity to act during their final year in office on a Supreme Court vacancy meant that Democrats never had a chance to act, or refrain from acting, in response to the hypothetical nomination. The rhetoric used by two prominent members of their caucus at these respective times, though, makes it rather clear that they would have done so if they had the opportunity and that the political argument today would be quite different if the roles were reversed if it had been a prominent liberal member of the Supreme Court who had died suddenly and a lame duck Republican President seeking to replace them.
