Bench Memos

Law & the Courts

Re: Biden Malarkey

Vice President Biden’s speech at Georgetown law school was even fuller of malarkey than I expected. (I’m relying on a rather messy C-SPAN transcript, which I clean up in trivial respects.) Some observations:

1. In this Senate floor statement from June 1992, Senator Joe Biden, then chairman of the Senate Judiciary Committee, said that if a Supreme Court vacancy were to arise while the “political season [i.e., presidential campaign] is underway,” President George H.W. Bush should follow the “practice of the majority of his predecessors” and not nominate anyone to the vacancy until after the election. Biden further stated that if President Bush were to ignore that advice, the Senate Judiciary Committee should “seriously consider not scheduling” a hearing until after the election.

Biden now brazenly claims that the “unequivocal bottom line” of his 1992 Senate floor speech, with respect to any vacancy that might arise that year, was that “if the president consults and cooperates with the Senate, or moderates his selections, then his nominees may enjoy my support” and that “I made it absolutely clear that I would go forward with the confirmation … process as chairman, even a few months before [the] presidential election if the nominee were chosen with the advice and not merely the consent of the Senate.” He also claims that “at the time I was speaking of the dangers of nominating an extreme candidate without proper Senate consultation.” [I have added the italicized phrase for clarity.]

But as Jonathan Adler has spelled out (emphasis added):

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.”

To put it simply: Biden is lying now about what he said in 1992 about any Supreme Court vacancy arising in that election year.

2. As I’ve explained, the text of the Constitution and the Senate’s longstanding practices and rules refute Biden’s newfound claim the Constitution dictates some sort of specific set of processes for the Senate in considering a nomination. Biden doesn’t explicitly repeat his prior claim that the Constitution requires the Senate to hold a hearing, but he does appear to claim (if I’m understanding him correctly) that the Constitution requires the Senate to have an up-or-down vote. Never mind that the same Appointments Clause applies to all nominations, that it’s commonplace not to have a hearing or a final vote on nominations, that (per point 2 here) various Supreme Court nominations in the past have been blocked without a vote, and that Biden himself (along with then-Senator Obama, Senators Leahy and Schumer, and some 20 other Democrats) voted to filibuster the Alito nomination in an effort to prevent an up-or-down vote.

3. Biden can’t even fairly present the position of Senate Republicans. He claims that they “announced that whomever [sic] the nominee might be, they intended to abdicate their responsibility completely.” No, Senate Republicans were carrying out their advice-and-consent role when they advised Obama that they wouldn’t confirm anyone.

4. Biden relies heavily on recent Senate practice. But as his 1992 statement and Senator Schumer’s speech from July 2007 make clear, that practice has been what it’s been only because a vacancy hasn’t arisen in an election year. (And, no, Joe, confirming Justice Kennedy in early 1988 to the vacancy that arose in mid-1987—the vacancy that led to your borking of Judge Bork—doesn’t qualify.) And it’s also probably been what it’s been only because for the past six vacancies, all the way back to 1993, the president was making a nomination to a Senate controlled by his party. And only because Biden and company didn’t have enough votes to filibuster the Alito nomination.

Does anyone seriously doubt that Senate Democrats would be happily following Biden’s 1992 script if the situation of the parties were reversed?

5. In purple prose, Biden argues that an eight-justice Court “for potentially and likely the next 400 days” is “a constitutional crisis in the making,” as “a patchwork Constitution is hardly a national constitution at all.” Tell that to Chuck Schumer, who serenely contemplated the possibility of an eight-justice Court for much longer than that.  Plus, as I discuss at that same link, having only eight justices for an extended period of time is no big deal. I’d also much prefer a “patchwork” that has things right in some parts of the country than the uniform wrongness that a five-justice liberal majority would be eager to impose. [Addendum: In that same 1992 floor statement, Biden labeled the costs of an eight-justice court “quite minor.”]

Biden also earn honors for a hilarious misuse of Marbury v. Madison:

More than two centuries ago, Justice John Marshall, famously declared that the court, quote, has a duty to say what the law is. Not an option, a duty, … a solemn duty. When the senate refuses to even consider a nominee, it prevents the Court from discharging that constitutional duty.

6. Perhaps most ridiculous is Biden’s broader framing of his argument. It turns out, you see, that when he meets with foreign leaders, they ask him, “Can you deliver?”  Biden seems not to recognize that that their concerns are rooted in President Obama’s alarming fecklessness on national security and foreign policy. Somehow I don’t think that the Senate’s holding a hearing on a Supreme Court nominee would resolve those concerns.

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