Bench Memos

Biden Denialism

The discovery of then-Senator Joe Biden’s lengthy remarks on judicial confirmations from June 25, 1992 has been hard for some folks to bear. As Ed noted here and here, Biden’s remarks clearly and unequivocally called for delaying consideration of any judicial nomination made “once the political season is underway.” 

Some folks have tried to explain away Biden’s remarks. Igor Volsky and Judd Legum at Think Progress, for instance, claim that Biden did not call upon the Senate to refuse a hypothetical election year nominee, pointing to additional comments Biden made about how the judicial confirmation process should be reformed. Here’s Volsky:

Biden’s full speech undermines their claim. Rather than urging his colleagues to deny Bush’s potential nominee a hearing, Biden was bemoaning the politicization of the confirmation process — hence his suggestion of not holding a hearing in the heat of a presidential election — and what he saw as Bush’s refusal to properly consult with the Senate in selecting a nominee. In fact, just 10 minutes after calling for temporary inaction on Bush’s candidate, Biden actually promised to consider a moderate Supreme Court nominee.

“I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate,” he said. “Therefore I stand by my position, Mr. President, if the President [George H.W. Bush] consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter.”

Is Volsky accurate? Not even close.

Yes, Biden did make those additional remarks, but he also preceded them by explaining he was discussing “how [the nomination] process might be changed in the next administration, whether it is a Democrat or a Republican.”  He further added that he was describing what should occur after “this next election,” particularly if such an election were to produce divided government. And lest there be any confusion about what Biden was talking about, he began his speech by noting he planned to address both “the question of what should be done if a Supreme Court vacancy occurs this summer” in addition to “four general proposals for how . . .the nomination and confirmation process should be changed for future nominations.”

I recognize that Biden’s remarks were long. With the materials he submitted for inclusion in the record, they span over 20,000 words (spanning fourteen, three-column pages in the Congressional Record). Still, the only way someone could claim that Biden did not propose refusing to consider a Supreme Court nomination to fill a vacancy that arose in an election year would be if that person a) failed to read the entire speech, or even the relevant excepts in their context, or b) did not care what Biden actually said. I’ll let readers decide for themselves which happened here.

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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