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Joe Biden, 1992: No Supreme Court Pick Until After Election


Vice President Joe Biden spoke out forcefully against appointing a new Supreme Court justice in an election year–in 1992, when he was chair of the Senate Judiciary Committee and George H.W. Bush was running for re-election.

Footage of Biden delivering an emphatic floor speech on the subject on June 25, 1992 was unearthed by C-SPAN on Monday.


Biden argued, in part:

…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 that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents [Millard] Fillmore and [Andrew] Johnson, and presses an election year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.

Biden also argued that it would be possible for the Supreme Court to operate without one of its members.

As the United Press International agency reported that day: “Biden conceded that the court might have to operate with a member short this fall, but added, ‘This may be the only course of action that historical practice and practical realism can sustain.'”

Biden added that while it was the president’s “right” to nominate justices to the Supreme Court, it was equally his “right” to oppose and to block them.

The New York Times reported that Biden, evading any responsibility for the nastiness of the confirmation fights over Robert H. Bork (who was rejected) and Clarence Thomas (who was eventually approved), explained that it was necessary to postpone any new potential appointments to the Court because of the danger of the “radical right”:

Mr. Biden said it was inevitable that the Supreme Court would become slightly more conservative, given that Republicans control the White House and moderate Southern Democrats are a force in the Senate.

But he added that President Bush and his predecessor, Ronald Reagan, had sought to move the Court sharply to the right, naming justices who would adopt a conservative agenda. He said both Presidents had “ceded power in the nominating process to the radical right”

“It is this power grab that has unleashed the powerful and divisive forces that have ravaged the confirmation process,” he said. “Either we must have a compromise in the selection of future justices or I must oppose those who are the product of this ideological nominating process.”

USA Today reported further that Biden said: “‘Can your Supreme Court nomination and confirmation processes, so racked by discord and bitterness, be repaired in a presidential election year? History teaches us that this is extremely unlikely.”

Interestingly, some influential Republicans agreed with Biden that Supreme Court appointments should not be made in an election year — taking the same position they have adopted today against President Barack Obama nominating a replacement for Justice Antonin Scalia, who died earlier this month, before a new president takes office in 2017.

Sen. Orrin Hatch (R-UT) told the New York Times “that he believed members of the Supreme Court are aware that a confirmation battle in an election year would be so divisive that anyone contemplating retirement would probably delay doing so until after the election.”

However, Sen. Alan Simpson (R-WY), the Minority Whip, was quoted by National Public Radio disagreeing with Biden: “It’s not for the chairman of the judiciary committee to decide who the president of the United States submits as a nominee to the United States Supreme Court.”

Attorney General William Barr told Larry King in an interview on CNN that the president should nominate a new justice:

KING: Let’s touch some other bases. Senator Biden, chairman of the Judiciary Committee, said today if a vacancy occurs the President should not name a new member of the United States Supreme Court. He should wait till after the election. Do you agree?

MR. BARR: Well, that’s his advice. I think the President’s responsibility under the Constitution is to nominate people to fill vacancies, and the President will make up his own mind as to-

KING: I mean, but if he asked your advice, what would you say?

MR. BARR: I’d say we should go ahead and nominate somebody for a vacancy. I think it’s important that, when the Court meets in the fall, it have a full complement of nine justices.

The Bush White House itself also disagreed with Biden. Spokesperson Judy Smith was quoted by USA Today: “The president alone has the responsibility to nominate justices. … In the event of a vacancy, he will discharge his duties under the Constitution as he sees fit.”

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