Vice President Joe Biden is downplaying his previous assertion that a U.S. Supreme Court nomination should not, based on Senate precedent, go forward in an election year.
As a long-time Democrat Senator from Delaware, Biden chaired the Senate Judiciary Committee from 1987 to early 1995, the group that screened court nominees before they went to the full Senate, and which was (and has continued to be since then) the venue for several contentious and politically polarized hearings, the most famous of which was for Justice Clarence Thomas.
The GOP Senate majority has vowed to take no action on any nominee for the high court until after the November 2016 election, i.e,, with the swearing in of a when a new president in January 2017, a development that the Obama administration and virtually all liberals/Democrats call obstructionism.
President Obama intends to name someone soon for the vacancy to replace the late Justice Antonin Scalia, who tragically passed away two weeks ago.
Leaving aside the ghastly Twitter hate that emerged immediately after his death and whether you agree with his judicial philosophy or not, Scalia, 79, a Ronald Reagan appointee, was one of the most influential and respected jurists in the history of the U.S. Supreme Court and who served there for almost 30 years.
When it comes to lifetime judicial nominations for the Supreme Court or the federal appeals courts, and to a far lesser extent the district courts, situational ethics for both parties seems to apply.
Under Article II, Section 2 of the U.S. Constitution, a president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court…”
One of the most important jobs of any president is to pick judges for the federal court system. This scenario does not always play out neatly in nuanced court rulings as anticipated, but a Democrat president usually picks liberal judges while his/her Republican counterpart typically picks conservatives. The ideological stakes have resulted in extreme political jockeying.
As one of many examples, Bush appointee and Chief Justice John Roberts voted twice to keep Obamacare in business, as Donald Trump keeps reminding everyone, so things don’t always work out as expected from an ideological perspective, as alluded to above.
That being said, with the untimely death of Justice Scalia, the Supreme Court is now at a tipping point, i.e., evenly divided between four conservatives and four liberals (although some court decisions fall outside that framework), which means the next appointment could have huge ramifications for the direction of the country.
In 1992, during the GOP administration of President G.W. Bush when the elder Bush was seeking reelection, then-Senator Biden had this to say on the floor of the Senate about election-year high court nominations.
“…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 Fillmore and Johnson and presses an election year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until ever — until after the political campaign season is over.”
— CSPAN (@cspan) February 22, 2016
Similarly, in an interview with the Washington Post around the same time, Biden similarly “urged President Bush not to fill any vacancy that might open up on the Supreme Court until after the November election. Warning that any election-year nominee ‘would become a victim’ of a ‘power struggle’ over control of the Supreme Court, Biden said he would also urge the Senate not to hold hearings on a nomination if Bush decided to name someone.”
Biden now says he was referring to a “hypothetical” vacancy and that he was really urging Republicans and Democrats to put aside their partisan differences, and that he actually supports the idea of filling a Supreme Court vacancy in an election year.
“Despite his attempt to walk back his comment from more than 20 years ago, Senate Republicans are using it as a shield now that Democrats are criticizing Senate Majority Leader Mitch McConnell for saying that Obama should not appoint another justice to the high court, with the election year well under way,” the Washington Examiner explained.
— Washington Examiner (@dcexaminer) February 24, 2016
“The emergence of Mr. Biden’s comments was just the latest — and perhaps the most explosive — example of a Senate phenomenon in which senators tailor their positions on judicial fights according to whether they serve in the majority or the minority and which party holds the White House,” the New York Times observed.
“Arkansas Gov. Bill Clinton, a Democrat, would go on to defeat Bush, a Republican, in the November general election. And during all of that election year, according to records of roll call votes, the Senate confirmed only one circuit court judge… Later in 1992, The New York Times reported that Democrats were trying to preserve judicial vacancies for Clinton to fill if he were elected president,” The Daily Signal claimed.
Other leading Democrats in the U.S. Senate who are pushing for a Scalia replacement now also previously abided by a rule in that chamber that they would stop confirming federal judges in a presidential election year, the Washington Post noted.
During the George W. Bush administration, U.S. Senator Charles Schumer (D-NY) even insisted that no Bush nominee to the Supreme Court should be approved in the last 19 months before the next election.
Several days ago, President Obama — who intends to name a Supreme Court pick in the near future — brushed off the past arguments of Biden and his colleagues because “we know Senators say stuff all the time.”
As a U.S. Senator from Illinois, however, Obama voted against the Supreme Court nominations of now Chief Justice John Roberts and Justice Samuel Alito and joined in a filibuster to prevent Alito from getting an up-or-down vote in December, 2005. Biden also participated in the Alito delaying tactics. The attempt to deny a vote on Alito was “the first time a partisan filibuster was ever launched against a Supreme Court nominee,” the Washington Times claimed.
The White House has disclosed that President Obama now “regrets” his ultimately unsuccessful attempt to prevent Alito through parliamentary maneuvering from getting a final vote, The Hill reported. Obama also claimed earlier this month that both parties are at fault in the politicization of high court nominees and admitted the Alito filibuster was done as a way to placate his liberal constituency.
According to the Washington Post, Biden in 1992 successfully blocked, among others, future Chief Justice Roberts from getting on the U.S. Court of Appeals for the D.C. Circuit, which is the considered the primary audition for the Supreme Court.
“But [Roberts’] nomination to the federal bench was dead on arrival at Biden’s Senate Judiciary Committee. Biden refused to even hold a hearing on Roberts’s nomination, much less a vote in committee or on the Senate floor. Roberts’s nomination died in committee and was withdrawn on Oct. 8, 1992. It was only about a decade later that he was re-nominated to the federal bench by President George W. Bush — and we all know the rest of the story…Roberts was not alone in being denied a hearing or a vote by Biden… in 1992 Biden killed the nominations of 32 Bush appointees to the federal bench without giving them so much as a hearing. And that does not count an additional 20 nominations for the federal bench where Biden did not hold hearings that year, which [the Congressional Research Service] excluded from its count because they reached the Senate ‘within approximately [four] months before it adjourned.'”
The name of Nevada Governor Brian Sandoval, a Republican, as a possible Supreme Court nominee was floated this past week, before Sandoval took his name out of consideration. Because of pressure from his liberal base, it is highly unlikely that Obama would nominate even a moderate Republican to the seat. Many pundits have argued that Obama was merely trolling the GOP with the Sandoval trial balloon.
— Joe B. Johnson (@joej2020usa) February 27, 2016
The political infighting over judicial nominees emerged most vividly with the defeat of controversial Supreme Court nominee Judge Robert Bork in October, 1987. “Biden’s adversarial management of the Bork nomination hearings marked the only time in modern political history that a Supreme Court nominee was blocked because of his judicial philosophy, rather than any question of ethics or qualifications,” the Washington Examiner recalled.
During the George W. Bush administration, Democrats short-circuited quite a few judicial nominees, including, for two years, the nomination of highly qualified attorney Miguel Estrada, a Honduran immigrant, to the D.C Circuit. Estrada eventually withdrew his nomination.
According a memo prepared by a staffer in the office of U.S. Senator Dick Durbin (D-Ill.) after a meeting with civil rights organizations, “They also identified Miguel Estrada [D.C. Circuit] as especially dangerous, because he has a minimal paper trail, he is Latino, and the White House seems to be grooming him for a Supreme Court appointment,’ Durbin’s staffer wrote,” The Daily Caller detailed.
In a Washington Post Op-Ed, Estrada and a colleague criticized the broken and politicized judicial confirmation process against the backdrop of the Scalia vacancy.
“We have both argued for a world in which judicial nominees receive prompt hearings and up-and-down votes based solely on their objective qualifications — education, experience and temperament. But that has not been our world for at least two decades. As recent history demonstrates, the only rule that governs the confirmation process is the law of the jungle: There are no rules. There is no point in pretending otherwise, as much as many of us wish it were not so.
“If the president or a senator of either party tells you differently, ask him or her how is it that both parties have systematically blocked judicial nominees of the other party — using the filibuster and other parliamentary tricks — for the past two decades. The whole purpose of these maneuvers is to prevent the Senate from giving an up-or-down vote to qualified nominees in the expectation that the nominee will eventually go away and the Senate will not have to vote on the merits of his or her nomination. As a senator, Obama filibustered nominees. So did then-Senator Hillary Clinton. And, of course, the Republican caucus also filibustered Obama’s nominees early and often. Even before the filibuster had been normalized, both parties — when in the majority — refused to schedule hearings on the candidates nominated by presidents of the other party or did so only with lengthy delays. Each of those instances involved, in the current parlance, the Senate ‘not doing its job’ and leaving judicial vacancies open for years. If all of that was unconstitutional, then both parties conspired to dispose of the document a long time ago.”
Do you think a new Supreme Court Justice should be nominated and confirmed in 2016 or in 2017 after the American people choose a new president?
[Photo by Rebecca Blackwell/AP]