Tuesday, March 22, 2016

The So-Called Biden Rule

The Biden Rule is a fiction.

In the 14 years 1972-1986 the court was pretty stable, just two changes, Stevens replaced Douglas and O'Connor replaced Stewart. Then in the 6 years 1986-1992 there were four changes:

  • 1986: Warren Burger -> Scalia
  • 1987: Lewis Powell -> Kennedy (after Bork's June nomination was rejected in October)
  • 1990: William Brennan -> Souter
  • 1991: Thurgood Marshall -> Thomas

The Clarence Thomas nomination was certainly contentious and it came after the failed Bork nomination. The Supreme Court term was about to end and Justices usually retire just after the term to give the most time for a confirmation before the next term. Justice Harry Blackmun was 83.5 years old and Justice Byron White had just turned 75 a few days before. People didn't know if they would retire and while none did in 1992, in the next two years two did Byron White who was replaced by Ruth Bader Ginsberg and Harry Blackmun was replaced by Stephen Breyer.

Biden made a long speech suggesting ways to repair the damage done to the institution by the Thomas confirmation and to depoliticize the process. He wanted more consultation between the President and Senate, particularly when they were of divided parties and he wanted a broader evaluation process so that the hearings themselves were less important. Obviously he wasn't successful.

Here is Biden's full 1.5 hours speech from June 25th 1992. Remember, there was no vacancy at the court when he said this.

Here are some relevant parts:

9:32 - 9:34: "As a result, it is my view, that if a Supreme Court Justice resigns tomorrow or within the next several weeks, or resigns at the end of the summer, President 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. The Senate too Mr. President must consider how it would respond to a Supreme Court vacancy in the full throws of an election year. It is my view that if the President goes in the way of Presidents Fillmore and Johnson and presses an election year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nominee until after the political campaign season is over. And I sadly predict Mr President that this is going to be one the bitterest, dirtiest presidential campaigns we will have seen in modern times. I'm sure Mr. President after uttering these words, some, some will criticize such a decision and say that it was nothing more an attempt to save a seat on the court in hopes that a Democrat would be permitted to fill it. But that would not be our intention Mr. President, if that were the course we were to choose as a Senate, to not consider holding hearings until after the election. Instead it would be our pragmatic conclusion that once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and essential to the process. Otherwise, it seems to me Mr. President we will be in deep trouble as an institution."

9:44: "Others will say that I'm not being contentious enough. They suggest that since the court as moved so far to the right already, that is it too late for a progressive Senate to accept compromise candidates from a conservative administration. They would argue that the only people we should accept are liberal candidates which are not going to come, nor is it reasonable to expect them to come, from a conservative Republican president. But 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, therefore I stand by my position, Mr. President, if the President 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. But if he does not as is the presidents right, then I will oppose his future nominees, as is my right."

So to compare it to the current situation. We're obviously "in the political season". We're a little earlier than the end of June and this is a vacancy produced by a death, not a planned retirement (which Justices often time during the presidency of their own party). Any hearing would definitely be contentious. It's clearly a political issue because Scalia was a conservative icon and Obama should not be expected to nominate a conservative (as Biden said of Bush Sr. nominating a liberal). By Biden's ideas, Obama perhaps shouldn't have nominated anyone until after the election, but he nominated the most moderate of his choices, someone Republican Senators have said would be a good pick, he did okay nominating someone with advise of the Senate. Now the Senate should do some investigation behind closed doors and if there isn't wide consensus, put off public hearings until after the election, so in mid November, the so-called lame duck period.

It's not ideal because it affects more than just the fall term. But it's also completely different than what the Republicans are describing. They typically say that Obama shouldn't nominate anyone, that the next president should, and they won't consider any nominee he makes. McConnell has softened his statements a little saying perhaps they'd consider someone in the lame duck session. The problem with that is, it is politicizing the situation even more, they'd presumably do this only if Republicans lost in the election (either the presidency or perhaps the Senate majority). Biden was trying to improve the process while there was no vacancy, McConnell actions have all been partisan.

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