Joe Biden: The Senate’s Duty on a Supreme Court Nominee
March 04, 2016, 3:44pm


IN my 36-year tenure in the United States Senate — nearly half of it as chairman or ranking Democrat on the Judiciary Committee — I presided or helped preside over nine nominees to the Supreme Court, from both Republican and Democratic presidents. That’s more than anyone else alive today.

In every instance we adhered to the process explicitly laid out in the Constitution: The president has the constitutional duty to nominate; the Senate has the constitutional obligation to provide advice and consent. It is written plainly in the Constitution that both presidents and senators swear an oath to uphold and defend.

That’s why I was so surprised and saddened to see Republican leaders tell President Obama and me that they would not even consider a Supreme Court nominee this year. No meetings. No hearings. No votes. Nothing. It is an unprecedented act of obstruction. And it risks a stain on the legacy of all those complicit in carrying out this plan. I would ask my friends and colleagues — and all those who love the Senate — to think long and hard before going down this road.

Some have taken comments I made in 1992 to mean that I supported the same kind of obstructionist position as a senator. But that reading distorts the broader meaning of the speech I gave from the Senate floor that year.

It was late June, and at the time there was much speculation that a sitting justice would retire, leaving President George H.W. Bush to appoint a successor in the final months of his first term.

We had been through several highly contentious Supreme Court confirmation hearings during my tenure, and I feared that a nomination at that late date, just a few weeks before the presidential conventions, would create immense political acrimony. So I called on the president to wait until after the election to submit a nomination if a sitting justice were to create a vacancy by retiring before November. And if the president declined to do that, I recommended that the Judiciary Committee not hold hearings “until after the political campaign season is over.”

Joseph R. Biden, while a senator in 1992, said that if a Supreme Court vacancy occurred, President George Bush should not appoint a nominee until after the election, or should compromise on a nominee with the Senate.

By C-SPAN on  February 22, 2016. Watch in Times Video »

Those brief statements were part of a much more extensive speech that reviewed the history of Supreme Court nomination fights during election years. My purpose was not to obstruct, but to call for two important goals: restoring a more consultative process between the White House and the Senate in filling Supreme Court vacancies, and encouraging the nomination of a consensus candidate who could lower the partisan temperature in the country.

It is the same view I hold today.

Throughout that speech, and throughout my career, I’ve argued that the Senate has an important role to play. This involves the president’s seeking advice from its leaders before making a nomination — as President Obama has done and will continue to do — and the Senate’s examining candidates before deciding whether to consent to their appointments.


Joe Biden’s 1992 Senate Speech

As a senator more than two decades ago, the vice president argued that President George Bush should delay filling a Supreme Court vacancy.

Joe Biden: The Senate’s Duty on a Supreme Court Nominee

Under my chairmanship, every Supreme Court nominee was given a hearing and a vote in the Judiciary Committee. And I made sure every nominee was given a full vote on the floor of the Senate, even those whose initial vote in the Judiciary Committee had failed, and even those whom I opposed. Only those who withdrew did not get floor votes. This position earned me the anger of my own party. But I believed strongly that the Constitution, clearly and plainly, calls for all 100 senators to advise and consent on nominees — not just the handful on the Judiciary Committee.

As a senator, I zealously guarded the rights of the Senate. As vice president, I hold the same view. But the framers also intended for the president to fulfill a clear constitutional responsibility. President Obama will do that by putting forth a nominee who will be eminently qualified, who recognizes the limits of the judiciary, who is fair-minded and who has an unimpeachable record. The Senate will need to fulfill its constitutional responsibility by considering, debating and voting on that nominee.

I know there is an argument that no nominee should be voted on in the last year of a presidency. But there is nothing in the Constitution — or our history — to support this view. Justice Anthony M. Kennedy was confirmed in the last year of Ronald Reagan’s second term. I know. I was chairman of the Judiciary Committee at the time. And we promptly gave him a hearing, a vote in committee and a full vote on the floor.

As I write this, nearly all Republican senators have said that they will refuse to consider any nominee — sight unseen. At a time when we need to reduce the gridlock in our politics, this would extend Congress’s dysfunction to the Supreme Court — preventing it from functioning as our founders intended for a year and possibly longer.

In my 1992 speech, I noted that in the five cases in which justices were confirmed in the summer of an election year, all five were filling vacancies that had arisen before the summer began. That is the case now. We still have time to proceed with hearings and a vote before we reach the summer conventions and fall campaign.

I hope that Republican leaders will take a step back and think about what they are doing. I hope they will think about the oaths they have taken. I hope they will think about their responsibility to the voters of this nation. And I hope they will think about their role in upholding the integrity of the United States Senate.

If they love the Senate as much as I do, they need to act.