Bench Memos

Senator Biden’s History of Stalling Judicial Nominees

In 1992, then Senator Joseph Biden explained why he believed Senate Democrats were justified in delaying action any prospective Supreme Court nominee due to the pending election and why, after the election, the Senate majority would be justified in demanding a more moderate or centrist nominee from a President of the opposite party. (That these were two separate points is something lost on folks like Igor Volsky and Jonathan Chait, who either have not read the whole speech, or do not care what Biden actually said.)

In a Washington Post column, Marc Thiessen explains how Biden’s speech was matched by his actions as Chair of the Senate Judiciary Committee. Specifically, Thiessen notes that Biden refused to take any action on President Bush’s nomination of John Roberts to the U.S. Court of Appeals for the D.C. Circuit.  Bush tapped Roberts for that Court in January 1992, but Biden refused to consider the nomination.

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 Roberts’s nomination died in committee and was withdrawn on Oct. 8, 1992.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.

There were no questions about Roberts’s qualifications. He was generally regarded as among the nation’s premier appellate advocates and an exceedingly well-respected attorney. Some might argue that the Committee’s failure to move on the Roberts nomination was justified because there was, at the time, some question as to whether the seat needed to be filled. Note, however, that such concerns vanished when President Obama had the opportunity to fill all of the D.C. Circuit’s open seats.  Moreover, as Thiessen notes, Roberts’s was not the only nomination to stall in an election year.

Another, more galling, example of Biden running out the clock to keep a judicial vacancy open in an election year is the case of Professor Lillian BeVier at the University of Virgnia.  A remarkable scholar, BeVier was also the first full-time female faculty member at UVA.  In October 1991, President Bush nominated her to the U.S. Court of Appeals for the Fourth Circuit and, as with Roberts, the Senate Judiciary Committee took no action whatsoever on her nomination. The same is true for Terrence Boyle, who was also nominated to an open seat on the Fourth Circuit in 1991.

Senator Biden’s obstruction in anticipation of an election was not confined to 1992, however. He chaired the Judiciary Committee from 1987-1995, and he used that power to prevent action on some of President Reagan’s nominees in 1988 for the same purpose. Among those stalled was Judith Richards Hope. As both the Washington Post and New York Times reported at the time, the reasons were simple: Senate Democrats did not want to allow a Republican president to alter the balance of an important court in the year before an election.

Nomination slowdowns in an election year were not entirely new. Frank Easterbrook was first nominated to the U.S. Court of Appeals for the Seventh Circuit late in 1984, but had to wait until after that year’s election and a subsequent renomination before the Senate Judiciary Committee would act. With rare exceptions (such as President Carter’s nomination of Stephen Breyer to the U.S. Court of Appeals for the First Circuit in 1980), the Senate rarely rushes to confirm in the second half of an election year, particularly if the Senate is controlled by the opposite party.  

But whatever the histor of election year slowdowns, Senate Democrats turned it up a notch in 1988 and again in 1992. The degree of obstruction in those years was unprecedented. Senate Republicans retaliated while President Clinton was in office, making it particularly difficult to fill seats that Senate Democrats had not allowed President Bush to fill. Then, after the election of 2000, Senate Democrats retaliated in turn, upping the level of obstruction in 2003 with the first-ever filibusters of qualified judicial nominees who enjoyed majority (and bipartisan) support. 

Jonathan H. Adler is the Johan Verhiej Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

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