Democrats are crying foul—because McConnell would not hold a hearing for Obama’s final Supreme Court nomination in 2016. But they have Joe Biden to thank for both McConnell’s 2016 refusal and his 2020 promise.
Sen. Mitch McConnell has said that the Senate will hold a hearing for a nomination that Trump will put forward. Democrats are crying foul—because McConnell would not hold a hearing for Obama's final Supreme Court nomination in 2016. But they have Joe Biden to thank for both McConnell's 2016 refusal and his 2020 promise.
In 2016, McConnell had only opposition among leading Democrats to his refusal to hold nomination hearings for Merrick Garland, but he had an ally in the words of Joe Biden from 1992. Now, he has for his ally Joe Biden's words from of 2016.
It was in 2016 that then President Barack Obama put forward his nomination of Merrick Garland to replace the late Justice Antonin Scalia, who died earlier that year. Garland entered into a contentious nomination process—one that Senate Republicans had already said would absolutely not happen. They had already declared, after Scalia's death, that they would not engage in a Supreme Court nomination process.
Obama was nearing the end of his second and final term in office. The Senate was led by Senate Majority Leader Mitch McConnell (R-Ken.), as it still is. McConnell and the Senate Republicans argued that the voters should be the ones who would decide which leader should have the nomination pick. They were bolstered in their claim by what was called the Biden rule.
Then Senator Biden, chairman of the Judiciary Committee, made a speech on the Senate floor in 1992. He used this speech to defend Democrats from making an appointment to the Supreme Court in an election year when the Senate and executive office were polarized.
Democrats in 2016, faced with the past words from Biden, said that Biden was speaking only of a partisan nominee, and that it was a hypothetical. In reaction to that, McConnell said "Let me remind colleagues what Vice President Biden said when he was chairman of the Judiciary Committee here in the Senate. Here's what he said:
'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,' he said 'and is central to the process. Otherwise it seems to me,' Chairman Biden went on 'we will be in deep trouble as an institution. Others may fret,' he said, 'that this approach would leave the Court with only eight members for some time. But as I see it,' Chairman Biden said, 'the cost of such a result, the need to reargue three or four cases that will divide the justices four to four, are quite minor."
Biden in 2016:
"I would go forward with the confirmation process as chairman. Even a few months before a presidential election... just as the Constitution requires." pic.twitter.com/r0WVdlitOK
— Kelb Hull (@CalebJHull)
In response to being confronted with his own words, and the Obama administration being hindered by them, Biden penned an op-ed in the pages of The New York Times, reversing attempting to reverse his earlier ideas and to make the case for the Senate to hold the nomination hearings. He was dismayed that McConnell would not allow the hearings to go forward for Garland.
He wrote: "Some have taken comments I made in 1992 to mean that I supported the same kind of obstructionist position as a senator. But that reading distorts the broader meaning of the speech I gave from the Senate floor that year.It was late June, and at the time there was much speculation that a sitting justice would retire, leaving President George H.W. Bush to appoint a successor in the final months of his first term."
"We had been through several highly contentious Supreme Court confirmation hearings during my tenure," Biden wrote, "and I feared that a nomination at that late date, just a few weeks before the presidential conventions, would create immense political acrimony. So I called on the president to wait until after the election to submit a nomination if a sitting justice were to create a vacancy by retiring before November. And if the president declined to do that, I recommended that the Judiciary Committee not hold hearings 'until after the political campaign season is over.'"
"Those brief statements were part of a much more extensive speech that reviewed the history of Supreme Court nomination fights during election years. My purpose was not to obstruct, but to call for two important goals: restoring a more consultative process between the White House and the Senate in filling Supreme Court vacancies, and encouraging the nomination of a consensus candidate who could lower the partisan temperature in the country. It is the same view I hold today."
So basically, per presidential hopeful, former Vice President, and former Senate Judiciary Committee Chair, Biden cannot reasonably make the case that McConnell and the Senate Republicans should not go ahead with Supreme Court hearings. He believed Bush, in 1992, should not be permitted a nomination during the last months of his term, but he thought Obama should be entitled to one, and now, with another Republican incumbent in office, his most recent words on the topic would indicate that he believes that the process should not go forward.
Biden's perspective changed, significantly, depending on what end of the power system he was seeking to uphold. In 1992, he wanted to preserve the power of the Democrat-led Senate, in 2016, he wanted to preserve the power of the Democrat-controlled presidency. Perhaps he will submit a new missive in 2020, letting the American voters know whether he stands by the power of an office, or the power of a political party, to make decisions to uphold the Constitutional authority of the nomination process, and the court.
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