Bench Memos

Law & the Courts

Feeble Biden Op-Ed on Scalia Vacancy

In an op-ed in today’s New York Times, Vice President Joe Biden says that he “believe[s] strongly that the Constitution, clearly and plainly, calls for 100 senators to advise and consent on nominees”—and that (as I understand his argument) the Senate therefore has a constitutional duty to give a Supreme Court nominee a committee hearing and an up-or-down vote on the Senate floor.

Biden’s constitutional claim cannot be taken seriously:

1. The Constitution (Article II, section 2) restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. The Constitution says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit. (How senators choose to do so is of course a fair topic for political praise or criticism, but it’s not a matter the Constitution speaks to at all.)

2. The Senate’s longstanding practices also refute Biden’s claim. It’s worth emphasizing that the same constitutional provision that governs nomination and appointment of Supreme Court justices applies equally to a vast range of executive-branch officers and lower-court judges. So if Biden’s claim were sound, every such nominee would be constitutionally entitled to an up-or-down vote on the Senate floor. There are surely thousands of nominees throughout American history (including many over the last decade or two) who never received a floor vote. (And, if my quick count on this Wikipedia page is right, that includes some one or two dozen Supreme Court nominees. Historical research would be needed to sort out how many of the “withdrawn” nominees were withdrawn because the Senate made clear that it would not be giving its consent.)

3. I don’t dispute Biden’s observation that all recent Supreme Court nominees who have persevered through the process have received up-or-down votes. But that hasn’t been because of some supposed constitutional duty that somehow applies to Supreme Court nominations but not to other nominations. If there were such a duty, how could Senate Democrats, including Biden—and Obama and Reid and Schumer and 21 others—have tried to filibuster the Alito nomination in 2006?

4. Again, how the Senate chooses to proceed is entirely up to it and is a matter properly within the realm of politics. The most politically salient point here is that no recent nominee—indeed, no nominee in 80 years—has been confirmed to a vacancy that arose in an election year (much less to such a vacancy that threatens to transform the Court). Biden can’t refute this point, so he instead miscasts it as “an argument that no nominee should be voted on in the last year of a presidency.” This enables him to miscite Anthony Kennedy, who was nominated to a vacancy that arose in June 1987, a full six months before the start of the 1988 election year. That’s the same vacancy, of course, to which Robert Bork was first nominated, only to be mauled by Biden and company.

5. Statements by leading Senate Democrats—including then-Senator Biden in 1992—also contradict Biden’s constitutional claim. 

Back in June 1992, Biden 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—and thus prevent any Senate action on the nomination—until after the election. Given that Biden was then chairman of the Senate Judiciary Committee, his statement that the committee should “seriously consider not scheduling” a hearing was tantamount to a clear warning that it wouldn’t.

In his op-ed, Biden tries to pretend that a straightforward reading of his words is somehow a distortion of the “broader meaning of [his] speech.” But as Jonathan Adler has already explained, the fact that Biden offered general advice for how the nomination process ought to work “in the next administration” doesn’t alter the plain meaning of his specific statements about any vacancy that might arise in 1992.

In May 2005, Democratic leader (then and now) Harry Reid also saw the constitutional question correctly:

The duties of the Senate are set forth in the U.S. Constitution. Nowhere in that document does it say that the Senate has a duty to give Presidential appointees [sic; he means “nominees”] a vote. It says appointments shall be made with the advice and consent of the Senate. That is very different than saying every nominee receives a vote.


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