With the reversal of Republicans’ position on filling an election-year vacancy on the court, Biden has performed a rhetorical balancing act on when high court nominees should be considered in an election year.
In his Monday TV interview and in a speech Sunday, Biden argued that as many as 40 percent of voters could have cast ballots by the end of the confirmation hearing of whomever Trump picks as a nominee. Biden told Action 2 News “that’s totally inconsistent with what the founders wanted” because the U.S. Constitution says “voters get to pick the president who gets to make the pick and the Senate gets to decide. We’re in the middle of an election right now … people are voting right now.”
However, the U.S. Constitution says nothing about the timing of confirmation votes and is silent on whether there should be no confirmation hearing right before a presidential election.
In June of 1992, while chairman of the Senate Judiciary Committee, Biden said President George H. W. Bush should not try to fill a high court vacancy when he was running for reelection. Decades later, when Biden was Obama’s vice president, Republicans said this so-called “Biden Rule” extended to any such vacancy in a presidential election year.
Biden then penned a New York Times op-ed in an effort to square his 2016 and 1992 positions, writing that “I feared that a nomination at that late date, just a few weeks before the presidential conventions, would create immense political acrimony.”
Immediately after the 2016 election, in January 2017, PBS’s Judy Woodruff asked Biden about Garland and whether Democrats “should do the same thing and oppose and refuse to go along.” Biden said, “No.”
Woodruff, though, did not specifically ask Biden about the “Biden Rule” or a vacancy that occurs on the court in the summer right before a presidential election.
“The Constitution says the president shall nominate — not maybe he could, maybe he can’t — he shall nominate. Implicit in the Constitution is that the Senate will act on its constitutional responsibility and give its advice and consent,” Biden said. He added that, as Senate Judiciary chair, he presided over more high court nominations than any living person.
“No one is required to vote for the nominee. But they, in my view, are required to give the nominee a hearing and a vote,” Biden said. “I think the Democrats should not take up what I think is a fundamentally unconstitutional notion that the Republicans initiated 10 months ago. I think they should see who they nominate and vote on them.”