Vice President Joe Biden on Thursday cast the Senate’s refusal to consider Judge Merrick Garland’s nomination to the Supreme Court as a viral dysfunction that would infect other branches of government and threaten the American democracy.
Biden used sweeping language in a bid to walk back his own comments from a June 1992 speech he made on the Senate floor, which Senate Republicans have used to justify their refusal to take any action on any Supreme Court nominee by President Barack Obama during an election year.
“We’re watching a Constitutional crisis in the making born out of dysfunction in Washington. It’s got to stop,” Biden told students at Georgetown University Law Center, just blocks from the Senate.
“Unless we can find common ground, how can the system designed by our founders function,” he added.
Biden noted that Republicans have pointed to the comments he made as a senator from Delaware 24 years ago, when he argued that then-President George H.W. Bush shouldn’t fill a hypothetical Supreme Court vacancy in an election year.
“Some will criticize such a decision and say that it was nothing more than an attempt to save a seat on the court in hopes that a Democrat will be permitted to fill it, but that would not be our intention,” Biden said then. “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 and essential to the process,” he said. “Otherwise, it seems to me we will be in deep trouble as an institution.”
Since they dug up the speech in February, Senate Republicans have repeatedly invoked Biden’s comments (leaving out the part of the speech in which Biden said he’d consider supporting a consensus candidate if a spot opened) to justify holding off on confirming a nominee — any nominee — during an election year.
“Now I hear all this talk about the ‘Biden rule.’ It’s frankly ridiculous. It doesn’t exist,” Biden said Thursday, pointing to his record of acting on Supreme Court nominations in the Judiciary Committee. “There’s only one rule I ever followed on the Judiciary Committee, that was the Constitution’s clear rule of advice and consent.”
While Biden gave his speech in Washington, the battle was playing out around the U.S., as Democratic activists try to pressure senators to meet with Garland in hopes of jumpstarting the confirmation process. On Wednesday, Republican Sen. Pat Toomey of Pennsylvania, who is up for re-election in the purple state, said that he would meet with the nominee.
And in a town hall in Kansas on Monday that went largely unnoticed until Thursday, Republican Sen. Jerry Moran told constituents that he thought senators should meet with and hold hearings for Garland. “I would rather have you complaining to me that I voted wrong on nominating somebody than saying I’m not doing my job,” Moran said, according to the Garden City Telegram.
But other top Republicans showed no signs of wavering, and they sought to flip the line of argument pushed by the White House and its allies.
“In the weeks and months to come, we can expect professional political activists on the left to ramp up efforts to organize protests and media campaigns, and persistently badger Republican senators to ‘do their job’ by rubber-stamping a nominee in the midst of political turmoil,” wrote Sen. Orrin Hatch (R-Utah) in Bloomberg View on Thursday morning. “This partisan campaign by the left is only more evidence that the best way for the Senate to do its job in such a caustic environment is to insulate the Supreme Court from polarizing political gamesmanship.”
Sen. Chuck Grassley (R-Iowa), who as Judiciary Committee chairman has the power to decide whether Garland gets a confirmation hearing, was unimpressed by Biden’s speech.
“No matter how hard the White House tries to rewrite history, it can’t change then Chairman Biden’s remarks explaining how the president and Senate should handle a Supreme Court nomination arising during a heated presidential campaign. As Chairman Biden explained, the hyper-political environment is bad for the nominee, the court, and ultimately the nation,” Grassley said in a statement.
“The vice president noted today that ‘the meaning and extent of your federal constitutional rights’ are heard and decided by the Supreme Court. He’s right,” Grassley continued. “And the American people should be provided an opportunity to weigh in on whether the court should move in a more liberal direction for a generation, dramatically impacting the rights and individual freedoms we cherish as Americans.”
Biden argued on Thursday that what Republicans are doing threatens to “deepen the gulf between the haves and have-nots.” A divided Court, Biden said, just means more for “the rich and powerful.”
As for Republicans who’ve held him up as an example, Biden said his record as Senate Judiciary Committee chairman should indeed be the model: Hold a hearing, have a vote.
“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. “And every nominee, including Justice [Anthony] Kennedy — in an election year — got an up or down vote by the Senate. Not much of the time. Not most of the time. Every single time.”
Biden’s speech also came the day after the court considered one of the most polarizing cases of this term: the eight sitting justices heard oral arguments about whether Obamacare’s mandate that employers provide contraception coverage should apply to religious nonprofits. It sweeps in the health law, religious liberties, and abortion politics, and it’s exactly the type of case that both sides are using to remind their bases why the Supreme Court matters.
The vice president noted that the court was considering such weighty topics as he tried to get people to think of the practical consequences of a court potentially dividing 4-4 on major decisions, and the impact of a long political impasse on Americans’ faith in the judicial system.
A Supreme Court that kicks split decisions back to the lower courts, Biden said, would mean that “federal laws — laws that apply to the whole country — will be constitutional in some parts of the country but unconstitutional in others.”
“The meaning and extent of your federal constitutional rights — from your freedom of speech, to your freedom to follow the teachings of your religious faith, to your right to be free from unreasonable search and seizure — all could depend on where you happen to live,” he continued.
On that point, however, Republicans drew once again on Biden’s 1992 speech to rebut his current comments. Brian Rogers, of the GOP opposition research outfit America Rising Squared, emailed reporters to point out that Biden had called the consequences of 4-4 rulings — specifically the need to reargue some cases before the full court in a later session — “quite minor compared to the costs that a nominee, the president, the Senate, and the nation would have to pay for what would assuredly be a bitter fight, no matter how good a person is nominated by the president.”
While much of Biden’s speech was devoted to clarifying his 1992 remarks, he made fresh comments that could come back to haunt a future Democratic president trying to work with a Republican Senate on a new nominee who could skew more liberal than Garland.
Garland, Biden said, has a “reputation for moderation,” and that was a factor in Obama choosing him.
“I think that’s a responsibility of an administration in a divided government,” Biden said. “Some of my liberal friends don’t agree with me, but I do.”
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