Bench Memos

Law & the Courts

Biden’s Flat-Out Lie

I see that journalists are credulously reporting Vice President Biden’s claim, in his Georgetown law school speech yesterday, that Senate Republicans have been selectively misquoting his 1992 speech.

As I explained in point 1 of my post on that speech, Biden is flat-out lying when he 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.” [I have expanded this sentence since the original posting to identify specifically Biden’s false claim.] 

For those still unclear on the point, here is a full copy of Biden’s 1992 speech from the Congressional Record. The reader will readily discover (see highlighted passage at outset of speech on CR 16307) that Biden provides an overview that divides his speech into three parts: (1) “I would like to discuss what has transpired over the past few years with respect to the confirmation process”; (2) “I also want to discuss the question of what should be done if a Supreme Court vacancy occurs this summer”; and (3) “Finally, I want to offer four general proposals for how I believe the nomination and confirmation process should be changed for future nominations.”

The first part of Biden’s speech (his distorted history of “the past few years”) runs to near the end of the first column of CR 16316.

The second part—“what should be done if a Supreme Court vacancy occurs this summer”—starts there and runs to near the end of the first column of CR 16317. It’s in that part (specifically, at the carryover from CR 16316 to CR 16317) that Biden states his view that, if a vacancy were to arise that year, “President [George H.W.] 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.” And, Biden immediately continues, if Bush instead “presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling hearings on the nomination until after the political campaign season is over.”

The third part of Biden’s speech starts at the bottom of the first column of CR 16317: “let me start with the nomination process and how that process might be changed in the next administration, whether it is a Democrat or a Republican.” [Emphasis added.] Biden emphasizes that he wants “all participants in the process [to] be clear well in advance of how I intend to approach any future nominations.” (As the context makes clear, when Biden refers to “future nominations,” he means nominations “in the next administration” and is distinguishing how he would address those “future nominations” from what he would do with respect to any nomination to an election-year vacancy.) Biden, being Biden, then largely repeats himself:

With this in mind, let me start with the nomination process and how that process might be changed in the next administration, and how I would urge to change it as chairman of the Judiciary Committee were I to be chairman in the next administration. [Emphasis added.]

It is only in this third part, concerning nominations “in the next administration,” that Biden makes the statement that he highlighted in this Georgetown speech yesterday: that “if the President consult and cooperates with the Senate, or moderates his selections absent consultation, then his nominees may enjoy my support.”

So when Biden now claims, in a carefully prepared speech, that this statement about nominations “in the next administration” somehow presented his “unequivocal bottom line” about how he would approach a nomination made to a vacancy arising in the 1992 election year, he is making an outrageous lie. Shame on any reporters who let him get away with it.

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