Joe Biden makes the case for Republicans to consider Merrick Garland
Vice President Joe Biden urged the Republican-controlled Senate to finally grant Supreme Court nominee Merrick Garland a confirmation hearing.
Retired federal Judge Timothy Lewis joined Biden in the White House’s Weekly Address on Saturday to illustrate his argument that the Senate should put aside partisan politics to give Garland consideration. After all, Biden noted, Lewis was nominated to the bench by Republican President George H.W. Bush and confirmed by a Democratic Senate a month before the 1992 presidential election.
Biden and Lewis argued that Garland is recognized as one of the nation’s “sharpest legal minds” and that the Constitution requires the president to nominate someone to fill a Supreme Court vacancy with the Senate’s “advice and consent.”
“Nobody is suggesting that senators have to vote ‘yes’ on a nominee. Voting ‘no’ is always an option. But saying nothing, seeing nothing, reading nothing, hearing nothing, and deciding in advance simply to turn your backs — is not an option the Constitution leaves open,” Biden said.
On Wednesday, Garland, the chief judge of the District of Columbia U.S. Circuit Court of Appeals, surpassed Louis Brandeis (who served on the Supreme Court from 1916 until 1939) for having the longest wait time between nomination and a Senate hearing of any SCOTUS nominee.
President Obama nominated Garland on March 16 to fill the vacancy left by the death of conservative Justice Antonin Scalia. But Senate Republicans have refused to hold confirmation hearings or meet with Garland, arguing that the appointment should be up to the president’s successor.
The day of Obama’s announcement, Senate Majority Leader Mitch McConnell, R-Ky., said in a floor speech that the Senate would observe the “Biden Rule” so the American people can have a say in the Supreme Court’s decision by voting in the presidential race in November.
“The American people may well elect a president who decides to nominate Judge Garland for Senate consideration,” McConnell said. “The next president may also nominate somebody very different. Either way, our view is this: Give the people a voice in filling this vacancy.”
The “Biden Rule” is a reference to a floor speech Biden made in 1992 as chairman of the Senate Judiciary Committee. He argued at the time that a president in the midst of an election should delay nominating someone to the Supreme Court until the election was over. And, he said, if the president proceeded, the Senate should not hold hearings until after the campaign season was finished.
“Some will criticize such a decision and say it was nothing more than an attempt to save a seat on the court in the hopes that a Democrat will be permitted to fill it,” Biden said then. “But that would not be our intention. … 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.”
Biden also argued in 1992 that the cost of having only eight Supreme Court justices temporarily would be minor compared with “the bitter fight” that would “assuredly” take place during an election year.
In the Weekly Address on Saturday, however, Biden quoted Scalia, who said only having eight justices raised the “possibility that, by reason of a tie vote, the court will find itself unable to resolve the significant legal issue presented by the case.”
“And if Republican senators fail to act, it could be an entire year before a fully staffed Supreme Court can resolve any significant issue before it,” Biden continued. “Folks, there’s enough dysfunction in Washington, D.C. Now is not the time for it to spread to the Supreme Court.”
Though Republicans point to the apparent contradiction between Biden’s arguments in 1992 and today, the vice president cited his 17 years as either the chairman or a ranking member of the Senate Judiciary Committee to suggest that he would not be stalling a nomination if the situation were reversed.
Biden said he had presided over nine nominations, more than anyone else alive, and that every nominee was greeted by committee members and given a hearing, and every nomination made it to the Senate floor.
“And every nominee, including Justice Kennedy — in an election year — got an up or down vote by the Senate. Not much of the time. Not most of the time,” Biden said. “Every single time. That’s the Constitution’s clear rule of ‘advice and consent.’ And that’s the rule being violated today by Senate Republicans.”
Lewis said that the Senate’s inaction has consequences like higher litigation costs and more delays.
“In the four months since Merrick Garland’s nomination, we’ve already seen how the Senate’s refusal to act is preventing the court from fulfilling its duty of interpreting what the law is and resolving conflicts in lower courts,” he said.
According to the White House, six justices have been confirmed during presidential election years since 1900, and Congress’ inaction amounts to an “unprecedented dereliction of duty.”
On June 23, President Obama said during a press briefing that the Supreme Court’s inability to reach a decision in United States v. Texas — which would have determined the constitutionality of the president’s recent executive action shielding millions of immigrants from deportation — made the case for why Scalia’s vacancy should be filled.
“For more than 40 years, there’s been an average of just over two months between a nomination and a hearing,” Obama said. “I nominated Judge Merrick Garland to the Supreme Court more than three months ago. But most Republicans so far refuse to even meet with him. They are allowing partisan politics to jeopardize something as fundamental as the impartiality and integrity of our justice system. And America should not let it stand.”