Joe Biden has weighed in on Supreme Court vacancies throughout his 47-year career in politics, as chairman of the Senate Judiciary Committee, vice president, and now Democratic presidential nominee -- but his stance on whether the Senate should take up nominees during election years has evolved.
Now, Biden’s past comments on Supreme Court nominations and confirmations have come back into this spotlight this month after the death of Justice Ruth Bader Ginsburg.
President Trump and Senate Majority Leader Mitch McConnell -- despite pushing to delay consideration of a Supreme Court justice four years ago when Barack Obama was president and Republicans held the Senate -- have vowed to push forward with a vote on a nominee to fill Ginsburg’s vacancy, and plan to do so before voters cast their ballots for president on Nov. 3.
But Biden is condemning Republicans for their push to confirm a Ginsburg successor with less than seven weeks to go until the election, warning it “would cause irreversible damage.”
“The last thing we need is to add a constitutional crisis that plunges us deeper into the abyss – deeper into the darkness,” Biden said, calling Trump’s and McConnell’s efforts an “exercise in raw political power.”
Biden pointed to the controversy surrounding Obama’s appointment of Merrick Garland to fill the vacancy left by late Justice Antonin Scalia in 2016, and argued that “having made this their standard when it served their interest, they cannot, just four years later, change course when it doesn’t serve their ends.”
Senate Republicans refused to hold a hearing or a vote on Garland’s nomination, citing the imminent 2016 presidential election.
Biden this week said that if he wins the election in November, “as the new president, I should be the one who nominates Justice Ginsburg’s successor.”
But Biden’s stance on election year nominations and confirmations has shifted over the years, dating back to his time as chairman of the Senate Judiciary Committee.
In June 1992, Biden delivered a speech calling for then-President George H.W. Bush not to move forward with a Supreme Court nomination should a vacancy occur before the election. At the time, there was not an actual vacancy on the high court, just rumors that former Justice Harry Blackmun would retire.
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During the time of his comments, Democrats held the majority of the Senate, while Republicans held the White House.
Lawmakers have long cited Biden’s remarks at the time as the “Biden Rule,” which assumes that the Senate, if controlled by a different party than the White House during the final year of a president’s term, should not consider a president’s nominee to the high court ahead of Election Day.
But Biden’s stance shifted in 2016, during the controversy surrounding Obama’s nomination of Garland to replace Scalia on the bench.
Biden, at the time, delivered a speech at Georgetown University, and said “there is no ‘Biden Rule,’ it doesn’t exist.”
“There is only one rule I ever followed in the Judiciary Committee,” Biden said. “That was the Constitution’s clear rule of advice and consent.”
Biden argued that the Senate had “an obligation” to “engage fully in the constitutional process of advice and consent” during an election year.
Biden, at the time, penned an op-ed for the New York Times, defending his past remarks, and saying that his comments in 1992 were misinterpreted.
“I know there is an argument that no nominee should be voted on in the last year of a presidency, but there is nothing in the Constitution—or our history—to support this view,” Biden wrote. “Justice Anthony M. Kennedy was confirmed in the last year of Ronald Reagan’s second term. I know. I was chairman of the Judiciary Committee at the time.”
He added: “As I write this, nearly all Republican senators have said that they will refuse to consider any nominee — sight unseen. At a time when we need to reduce the gridlock in our politics, this would extend Congress’s dysfunction to the Supreme Court — preventing it from functioning as our founders intended for a year and possibly longer.”
Biden went on to urge Republican leaders to “think about what they are doing,” and “their role in upholding the integrity of the United States Senate.”
“If they love the Senate as much as I do, they need to act,” Biden wrote.
But Ginsburg’s unexpected passing has once again brought the Supreme Court into the forefront during an election year, and Biden has shifted his stance again, urging Senate Republicans not to vote for a Trump nominee.
Biden is now pleading with "those few Senate Republicans — the handful who will really decide what happens. Don’t vote to confirm anyone nominated under the circumstances President Trump and Senator McConnell have created.”
“Don’t go there,” Biden said this week. “Uphold your Constitutional duty — your conscience. Cool the flames that have been engulfing our country.”
Biden stated that "if Donald Trump wins the election — then the Senate should move on his selection — and weigh that nominee fairly.”
But he stressed that "if I win the election, President Trump’s nomination should be withdrawn. As the new President, I should be the one who nominates Justice Ginsburg’s successor, a nominee who should get a fair hearing in the Senate before a confirmation vote.”
Biden’s shift has sparked criticism from Republicans, specifically the president’s re-election campaign, casting him as a hypocrite.
“Joe Biden’s opposition to nominating and confirming a justice now is completely hypocritical and based solely on the politics of the moment,” Trump campaign communications director Tim Murtaugh told Fox News Wednesday.
“Every single time he’s weighed in over the years, his opinion has been guided by what’s good for him and his party,” Murtaugh continued. “He can’t be trusted to follow history or precedent.”
Meanwhile, the president is expected to announce his nominee to fill Ginsburg’s vacancy on Saturday from the White House, and McConnell, a Republican from Kentucky, has vowed that that nominee will receive a vote on the floor of the Senate.
McConnell has defended his actions surrounding the Garland nomination, saying that there is no comparison between 2016 and today because in 2020 Republicans control both the White House and the Senate, unlike 2016, when Democrats only controlled the White House.
According to McConnell’s office, 15 times in U.S. history, a Supreme Court vacancy has arisen in a presidential election year, and the president has moved to nominate someone to the seat. In seven of those 15 times, according to his office, voters put in place an opposite-party Senate.
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McConnell’s office said that only two of those seven nominations were confirmed, the last being in 1888.
McConnell’s office also noted that in eight of those 15 times, voters had chosen a Senate majority of the same party as the president, to which seven of those eight nominations were confirmed.
“The only such nominee who was not confirmed faced bipartisan opposition over serious questions of judicial ethics and personal finances,” said McConnell Communications Director David Popp. “Apart from that strange exception, no Senate has failed to confirm a nominee in the circumstances that face us now.
“The weight of historical precedent was behind the Senate majority’s decision in 2016 and there is even more overwhelming precedent behind its decision to move forward in 2020,” Popp added.
At this point, it appears the White House and Senate Republicans have the votes to push through a nominee, as only two Republicans — Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska — have said they oppose moving ahead with a nomination ahead of the election.
Republicans can lose up to three votes and still be able to confirm a Trump nominee, with Vice President Mike Pence as the tiebreaker.
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