“There is no Biden rule.” That was the overarching theme of Vice President Joe Biden’s speech at Georgetown University on Thursday, remarks aimed at keeping the pressure on Senate Republicans to formally consider Merrick Garland’s nomination to the Supreme Court.
As has been well covered by now, one of the ways Republicans are justifying their refusal to hold confirmation hearing on Garland’s nomination—or even meet with the man face to face—is by citing snippets of a two-decade-old speech that Biden gave during the final year of George H.W. Bush’s presidential term. Then the chairman of the Judiciary Committee, Biden spent more than an hour on the Senate floor lamenting how contentious the nominating process in general had become and suggesting that he would, in theory, be against the president nominating someone in the middle of the current presidential election. After Justice Antonin Scalia died nearly a quarter of a century later, Republicans pulled up the clip from the C-SPAN archives and, voilà, the “Biden rule” was born.
The White House has been working overtime to explain away Biden’s remarks, as has Biden himself, including in a New York Times op-ed published earlier this month. Republicans, though, have shown no interest in hearing Biden out. “The Senate will continue to observe the Biden rule so that the American people have a voice in this momentous decision,” Senate Majority Leader Mitch McConnell said on the Senate floor on Thursday only minutes before the vice president began his remarks a mile or two across town.
There’s a lot to unpack when it comes to the history of election-year SCOTUS confirmations. But the most important thing to understand in the specific fight over the Biden rule is that Biden is correct: There is no rule. There also wasn’t even any actual precedent set in the Senate. Biden was talking about a hypothetical vacancy created by a Supreme Court resignation that never came to be. Today, Republicans are dealing with an actual vacancy created by the death of a sitting justice and refusing to even meet someone the current president nominated for the post. (Biden also made his speech at the end of June, roughly three months later in the campaign than Republicans find themselves today.)
Even if you go by the Republican reading of isolated parts of his speech, the most you can reasonably say is that Biden suggested that in the event a resignation did happen, President Bush should wait to nominate a replacement until after November’s election. Here’s the most relevant portion of his Senate speech:
[I]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 after the political campaign season is over.
Note all the caveats that Biden peppers throughout that brief passage: “it is my view,” “should consider,” “must consider,” “should seriously consider,” etc. Yes, Biden’s judiciary gavel gave his words considerably more weight, but it is clear that he was stating a preference, not setting precedent. Also note that Biden was talking specifically about a vacancy created by a resignation in an election year (something more likely to be politically motivated, or at least pre-planned) and not a vacancy created by someone’s death, as was the case when Antonin Scalia died in his sleep at a Texas hunting lodge last month. There’s also the not incidental fact that Biden specifically left the door open for a lame-duck confirmation—something McConnell and Republicans have explicitly ruled out this time around. Even if there were a Biden Rule, it’s clear McConnell and co. would only be following the portions of it that benefit them.
In his speech, Biden also stressed that, while he made his preferences clear on the Senate floor, during his time as the top Democrat on the Judiciary Committee, every high court nominee got a hearing and a vote. “Every nominee got out of the committee on 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. “Not much of the time. Not most of the time. Every single time.”
Biden’s reliance on history, though, rings a little hollow since he never found himself in exactly same situation as his Senate successors are now—and because delaying a Bush nomination until after the election would have clearly been to Democrats’ benefit. The fact is that both Democrats and Republicans are in uncharted territory here. Republicans aren’t just hiding behind a “rule” that doesn’t exit; they’re also pointing to a “tradition” with no modern precedent.