Former Vice President Joe Biden, the Democrat nominee for president, did not bring up the so-called “Biden Rule” during a speech on Sunday when he demanded the U.S. Senate preserve until after the upcoming election the Supreme Court vacancy resulting from the death of Associate Justice Ruth Bader Ginsburg.
In 2016, then-President Barack Obama nominated Judge Merrick Garland to the U.S. Supreme Court when Associate Justice Antonin Scalia died early that year. Senate Majority Leader Mitch McConnell refused to bring Garland’s nomination up for a vote and would not even hold hearings on Garland’s nomination in the GOP-controlled Senate.
McConnell’s decision to wait until after the 2016 election–which now-President Donald Trump won at the top of the ticket and in which Republicans retained the U.S. Senate majority they won in 2014–infuriated Democrats. But at the time, McConnell cited what he called the “Biden Rule,” based on Obama’s vice president, Biden, and a standard he laid out in the early 1990s when he was chairman of the Senate Judiciary Committee.
On June 25, 1992, when Republican George H.W. Bush was president and Biden was a U.S. senator from Delaware and the chairman of the Judiciary Committee–while there was no vacancy or candidate for the U.S. Supreme Court–Biden gave a speech on the floor of the U.S. Senate. Arguing that the confirmation process of Justice Clarence Thomas was so politically toxic–Democrats tried to derail Thomas in much the same way they would decades later try to derail now-Justice Brett Kavanaugh in 2018 just before the midterm elections, failing in both cases–that if a Justice were to resign that summer, Bush should wait until after the election to move forward on the matter.
According to a 2016 PolitiFact article, in a 1992 floor speech, Biden said:
Should a justice resign this summer and the president move to name a successor, actions that will occur just days before the Democratic Presidential Convention and weeks before the Republican Convention meets, a process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself.
Mr. President, where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is a partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue. 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.
In justifying holding up Obama’s nomination of Garland, McConnell pointed to that speech–dubbing it the “Biden Rule,”–infuriating Democrats and the Obama White House even more.
The Obama White House was so upset about it that the now-former Democrat president’s team actually developed a graphic and formally issued it from the White House, claiming that the “Biden Rule” did exist but not the way McConnell was framing it.
The Obama White House put out this social media graphic:
— Will Chamberlain (@willchamberlain) September 19, 2020
“When it comes to the Supreme Court, there is only one Biden Rule,” the Obama White House graphic said, which argued a nominee should get a hearing, a committee vote, and a vote in the full Senate. “Even in an election year,” it concluded.
Biden also delivered a speech in March 2016 in which he said that as chairman of the Senate Judiciary, he would move forward with a Supreme Court nomination in an election year:
Biden in 2016: “I made it absolutely clear that I would go forward with the confirmation process as chairman even a few months before a presidential election” https://t.co/TkvTxrhUU4
— John McCormack (@McCormackJohn) September 19, 2020
This is apparently no longer a principle that Biden stands behind, as this weekend, even before the funeral for Justice Ginsburg, Biden demanded President Trump not nominate and the U.S. Senate not consider a nominee for the late Justice’s vacant seat.
“This appointment isn’t about the past. It’s about the future,” Biden contended.
Biden asserted that because Americans are voting right now, “to jam this nomination through the Senate is just an exercise in raw political power.”
“The Senate should not act until the American people select their next president,” he said.
“Voters will not stand for this abuse of power–this constitutional abuse,” Biden said.
But despite Biden’s latest position on this, as evidenced by his public comments since Ginsburg’s passing, it seems as though Republicans have enough statements from him–both during his time in the Senate and as vice president–to justify not just their actions in the Garland situation but also now in this latest Ginsburg situation. In other words, the so-called “Biden Rule” cuts both ways: The GOP can use it to justify both actions, and there is enough difference between the two situations that Republicans have the energy they need to move forward now.
“In 2014, the American people elected a Republican majority in the Senate to put the brakes on President Obama’s judicial nominations,” Sen. Tom Cotton (R-AR) said in an interview on Fox News Sunday for instance:
In 2018, we had a referendum on this question just a month before the 2018 midterms when we had the vote for Justice Kavanaugh. There could not have been a clearer mandate. The American people didn’t just elect Republicans; they expanded our majority. They defeated four Democratic senators who voted against Justice Kavanaugh. They reelected the one Democratic senator who did vote for Justice Kavanaugh. So we have a clear mandate to perform our constitutional duty. That’s what the Senate majority will do now, and that’s what the Senate majority did back in 2016 as well.
Sen. Ted Cruz (R-TX) was even more explicit in his explanation of the matter during an appearance on ABC’s This Week on Sunday. Cruz noted he believes the Senate should hold a confirmation vote for the Ginsburg replacement before Election Day, explicitly distinguishing between the Garland scenario and this one.
“Now, on the question of precedent, look, we had this fight at the end of the Barack Obama term,” Cruz told host George Stephanopoulos. “And — and at the time all the Democrats were saying, ‘Confirm the nominee. Confirm the nominee,’ and all the Republicans were saying, ‘We’re not going to confirm the nominee.’ And so we’ve got a situation — you just played a quote from me in 2016. We can play that game all day long where you can play a quote from Chuck — Chuck Schumer — saying you’ve got to confirm the nominee.”
Stephanopoulos pressed him further about this, suggesting it was all about pure power politics, and Cruz dismissed that notion.
“If you look at history, if you actually look at what the precedent is, this has happened 29 times,” Cruz said. “Twenty-nine times there has been a vacancy in a presidential election year. Now, presidents have made nominations all 29 times. That’s what presidents do. If there’s a vacancy, they make a nomination. What has the Senate done?”
He continued, “And there’s a big difference in the Senate with whether the Senate is of the same party of the president or a different party of the president. When the Senate has been of the same party of the president, and a vacancy occurs in an election year, of the 29 times, those are 19 of them. Of those 19, the Senate has confirmed those nominees 17 times. So if the parties are the same, the Senate confirms the nominee. When the parties are different, that’s happened ten times. Merrick Garland was one of them. Of those ten, the Senate has confirmed the nominees only twice. And — and there’s a reason for that. It’s not just simply your party, my party. The reason is it’s — it’s a question of checks and balances. In order for a Supreme Court nomination to go forward, you have to have the president and the Senate. In this instance, the American people voted. They elected Donald Trump. A big part of the reason they elected Donald Trump is because of the Scalia vacancy, and they wanted principled constitutionalists on the court. And the big part of the reason why we have a Republican majority, elected in 2014, reelected in 2016, grown even larger in 2018, a major issue in each of those elections is the American people voted and said, ‘We want constitutionalist judges.’ And so the president was elected to do this, and the Senate was elected to confirm this nomination.”
Kyle Olson is a reporter for Breitbart News. He is also host of “The Kyle Olson Show,” syndicated on Michigan radio stations on Saturdays. Listen to segments on YouTube or download full podcast episodes. Follow him on Twitter, like him on Facebook, and follow him on Parler.