Joe Biden's comments haunt him two decades later

A political stand-off over a U.S. Supreme Court nominee is brewing in the nation's capital – and at the center of the debate is Vice President Joseph R. Biden Jr.'s words from more than two decades ago.

Biden has argued that Republicans should not stall a vote on President Barack Obama's nominee, federal appeals court judge Merrick Garland, to fill a vacant seat on the U.S. Supreme Court. Republicans, however, are refusing to consider the nomination in a presidential election year.

To help their case, Republican leaders point to comments Biden made on the Senate floor in June 1992 when he was a Delaware senator. In his speech, which resurfaced on C-SPAN, Biden, then chairman of the Senate Judiciary Committee, made the case for President George H. W. Bush to not nominate someone to fill a hypothetical Supreme Court vacancy until after the presidential election. He argued that the Senate Judiciary Committee should “seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”

Conservatives have used this inconsistency to their advantage, calling it the "Biden Rule" – even as Biden has explained and provided context around the decades-old comments that are coming back to haunt him.

Republicans continued to invoke the "Biden Rule" on Wednesday after Obama announced his nomination of Garland .

Senate Majority Leader Mitch McConnell used the June 1992 speech to explain why the Senate will not act.

“The Senate will continue to observe the 'Biden Rule' so the American people have a voice in this momentous decision,” the Kentucky Republican said on the Senate floor. "The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate someone very different. Either way, our view is this: Give the people a voice."

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Mary Brigid McManamon, a constitutional law professor at Delaware Law School, said if the Republicans invoke the “Biden Rule,” there is nothing the Democrats can do to block it. Since the Democrats are the Senate minority, they don’t have the authority to call hearings.

“There is nothing in the law that can force the Senate to have hearings or vote on the nominee,” McManamon said.

Under the U.S. Constitution, the President must seek the “advice” and obtain the “consent” of the Senate before a federal judicial nomination can assume their post. The constitution’s “advice and consent” language is what gives the Senate the authority to hold or refuse to have hearings. It has already been invoked by the senate on several of President Obama’s lower level judicial nominees.

“Given the Senate rules, they can completely block any nominee,” McManamon said.

Democrats and the White House can only pressure the GOP to act.

Obama called Garland, a long-time jurist and former prosecutor, "one of America's sharpest legal minds" and said he deserves a full hearing and Senate confirmation vote​

​The president urged the Republican-led Senate not to let the particularly fierce and partisan political climate quash the nomination of a "serious man."

Garland, 63, is the chief judge for the United States Court of Appeals for the District of Columbia Circuit, a court whose influence over federal policy and national security matters has made it a proving ground for potential Supreme Court justices.

He would replace conservative, Justice Antonin Scalia, who died last month, leaving behind a bitter election-year fight over the future of the court.

Obama announced his choice at a ceremony in the Rose Garden, with Democratic Senate leaders and allies looking on.

Garland, who had been passed over before, choked back tears, calling the nomination "the greatest honor of my life." He described his grandparents' flight from anti-Semitism in Eastern Europe and his modest upbringing.

Republican leaders were quick to say Wednesday that they would not heed Obama's advice.

In response, Biden's staff told The News Journal that Republicans are using a small portion of his much longer speech from 1992.

His press secretary pointed out that the speech was given less than a month before the first party nomination convention. At the time, there was speculation that a sitting justice would retire, leaving Bush to appoint a nominee in the last few months of his presidency, but the justice did not end up retiring that year.

This is different than a vacancy caused by the death in the beginning of the year, she said.

She also pointed to Biden's argument later in the speech in which he said that if the president sought advice from the Senate and "moderated" his selection, the nominee should get a floor vote and his support.

"If the president consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter. But if he does not, as is the President's right, then I will oppose his future nominees as is my right," Biden said in the speech.

Biden also defended his position in an op-ed published March 3 in The New York Times.

"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," Biden wrote.

There is historical precedent for the Senate tying a president’s hands when it comes to judicial nominations. In the 1860s, two Supreme Court justices died during Andrew Johnson’s administration. The Senate responded by passing the Judicial Circuits Act of 1866 reducing the number of Supreme Court justices to seven from nine, thus ensuring Johnson would not appoint a justice during his tenure.

But lame-duck presidents such as Obama, have also achieved success in having their candidates received confirmation. John Adams was able to get Senate approval for John Marshall as Supreme Court Chief Justice with only a month left in his term.

“To the extent you want to play politics with the Supreme Court nominations, there is historical precedent,” McManamon said.

McManamon, who has studied Supreme Court nominations, said she has noticed a change in tenor from the U.S. Senate during the 1990s. Prior to the 1990s, according to McManamon, objections to nominations were focused on specific individuals such as Robert Bork, a Reagan nominee whom the Democrats labeled an “ideological extremist.”

Since the Clinton administration, the Republicans became more active in delaying nominations on circuit and federal appellate judges. A tact that continued with the Democrats halting former President George W. Bush’s nominees and continues today under the Republicans and Obama.

“I think it might hurt the Republicans politically, similar to the shutdown of the government,” she said. “It could come back to bite them.”

Delaware's Democratic Senators encouraged Republican leaders Wednesday to allow a hearing for Garland.

U.S. Sen. Chris Coons, a member of the Senate Judiciary Committee, accused Republicans on the committee Wednesday of "dereliction of duty" for refusing to meet with Garland.

Coons said he will urge the GOP members to reconsider and to hold a hearing on Garland's nomination.

Coons, D-Del., said he'll do his “homework” in the coming weeks before reaching any conclusions on Garland. But he said Garland's background suggests he's “eminently qualified” to serve on the Supreme Court.

“The only way you can justify refusing to have a hearing or refusing to even meet with a nominee is to disrespect this president and suggest that somehow, in his last year in office, he doesn’t hold the power of the presidency, he doesn’t have the constitutional duty to nominate a candidate to the Supreme Court,” Coons told reporters in a conference call. “That’s just not true.”

The Senate is out of session for two weeks starting Thursday. Coons said he'll use that time in Delaware to learn more about Garland’s record and will request a meeting with him when the Senate returns.

“I am very much hopeful that in the end he will win the sort of bipartisan support in this process that he did back in ’96 and ’97 when he was nominated by President Clinton for the D.C. Circuit.,” he said.

Sen. Tom Carper, D-Del., also said he would carefully review Garland’s nomination and is “disappointed” by Republicans’ refusal to consider a nominee until a new president is sworn in.

“This is unprecedented in our nation’s history,” Carper said in a statement. “Each of us has taken an oath to uphold the Constitution – some of us many times over – and any abdication of this duty is a failure to serve the American people as we’ve been elected to do.”

The Associated Press contributed to this report.

Contact Jessica Masulli Reyes at 302-324-2777, jmreyes@delawareonline.com or Twitter @JessicaMasulli.

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An earlier version of this story was unclear about Biden's comments regarding a hypothetical Supreme Court vacancy in a 1992 speech. The story has been updated to clarify the information.