Joe Biden in 1992 took to the floor of the U.S. Senate to call for “Reform of the Confirmation Process,” as he titled his speech. The Delaware senator’s lengthy discourse — the longest of his Senate career at that point, according to Biden — touched on many ways in which Biden felt the judicial nominating process needed reform.
Biden timed the speech for the end of the Supreme Court session, because, in his words, that was the eve of “the time that historically the Supreme Court Justices make judgments about whether or not they are going to stay on for another year.”
One of Biden’s calls for “reform” was returning to the “tradition against acting on Supreme Court nominations in a presidential year.”
Here is what Biden said:
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 after the political campaign season is over.
Biden gave examples of how “election year politics can pollute Senate consideration of a distinguished candidate,” and laid out historical arguments for his stance: “Overall, while only one in four Supreme Court nominations has been the subject of significant opposition, the figure rises to one out of two when such nominations are acted on in Presidential election years.”
Now Biden’s speech was long and it seems to have confused some readers. A handful of liberal writers have argued that Biden wasn’t saying what he was saying (see Igor Volsky and Judd Legum at the Center for American Progress or Jonathan Chait at New York magazine).
Here’s Chait’s argument:
Chait’s mistake is understandable, but it’s also clearly a mistake. When Biden said a compromise nominee would get his support, he was speaking of “the next administration.”
Close reading of the speech makes it clear.
Biden’s speech had many sections. One section was his discussion of a nominee in an election year.
On page S 8862 of the Congressional Record, Biden began his discussion of presidential-year nominations with this sentence: “Having said that, we face one immediate question: Can our Supreme Court nomination and confirmation processes, so racked by discord andbitterness, be repaired in a Presidential election year? History teaches us that this is extremely unlikely.”
This section of Biden’s speech includes the lines about a tradition of no presidential-year nominations or hearings. He expounds on this theme for about 1,300 words. Then Biden transitions into the next section of his speech here:
It is in this section where Biden says he would support a compromise candidate for the court. It was clear: after the 1992 election, if President Bush won re-election and put up a moderate judge, Biden would support that moderate judge. Before the election, Biden’s previous section dictated no hearings.
There are many caveats here: Biden may have just been talking out of his rear end; Biden’s no-election-year case was made in the weeks before the conventions, not in the spring; Why should conservatives care considering Donald Trump is the likely nominee? Maybe Merrick Garland is better than the risk of letting Hillary Clinton fill the vacancy.
But this much seems clear to me: The Biden Standard would warn Obama against nominating a justice now in an election year, and would justify Republicans refusing to hold a hearing.
Timothy P. Carney, the Washington Examiner’s senior political columnist, can be contacted at [email protected]. His column appears Tuesday and Thursday nights on washingtonexaminer.com.
