Vice President Joe Biden tried to prod Republicans into holding a vote on Judge Merrick Garland’s nomination to the Supreme Court in a speech at Georgetown Law School Thursday, telling students they are witnessing a “constitutional crisis in the making” if Republicans refuse to consider Garland.
“My consistent advice to presidents of both parties has been that they should engage fully in the constitutional process of ‘advice and consent’ — and my consistent understanding of the Constitution has been that the Senate must then do so as well,” Biden said. “Period.”
Biden was backing off a floor speech he made on the Senate floor in 1992 when he discussed judicial nominations at length and argued against presidents making or senators considering Supreme Court nominees until “after the political campaign season is over.”
“In my time as the ranking Democrat or as chairman of the Senate Judiciary Committee, I was responsible for eight nominees to the Supreme Court — some I supported, others I voted against,” Biden said Thursday.
“And in all that time, every nominee was greeted by committee members; every nominee got a committee hearing; every nominee got out of the committee to the Senate floor; and every nominee, including Justice [Anthony] Kennedy — in an election year — got an up-or- down vote by the Senate,” Biden said, chiding Republican Senate leaders for their pledges to not even sit down with Garland, let alone schedule a floor vote on his nomination.
“Not much of the time; not most of the time — every single time,” he added.
Biden was speaking hypothetically back to June 1992, as there was no vacancy then.
“If the president consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support, as did Justices Kennedy and [David] Souter,” Biden said then. “But if he does not, as is the president’s right, then I will oppose his future nominees as is my right.”
Biden told Republicans that the Constitution, and famous constitutionalists, says that they have a “duty” to consider a Supreme Court nominee. And he warned about leaving the high court short a justice for nearly a year.
“We must make sure that a fully functioning Supreme Court is in a position to address” the day’s “significant issues.”
Biden said leaving the Supreme Court with an even number of justices could throw major issues to lower courts, creating “fragmented judicial power” and providing contradictory decisions.
He warned that plaintiffs would “forum shop” to find an appellate court in a geographic area more conducive to their point of view.
“At times like these, we need more than ever to have a fully functioning Supreme Court … that can resolve divisive issues peacefully,” he said.
“Dysfunction and partisanship are bad enough on Capitol Hill,” he said. “We can’t let the Senate spread this dysfunction to the Supreme Court of the United States,” Biden added before imploring Republicans to consider Garland, who is chief judge of the U.S. Court of Appeals for the District of Columbia Circuit.
