Republicans have unearthed a speech by Vice President Joseph R. Biden from 1992 in which he said then-President George H.W. Bush’s attempt to fill a Supreme Court vacancy should wait until his successor came into office in 1993. The GOP ... By Stephen Dinan and Tom Howell Jr. - The Washington Times - Monday, February 22, 2016
It may be Vice President Joseph R. Biden who dooms President Obama’s hopes of reshaping the Supreme Court and picking a replacement for the late Justice Antonin Scalia after Republicans unearthed a 1992 speech in which then-Sen. Biden said it was “not fair” to let a lame-duck president make such an important decision.
Mr. Biden, who was chairman of the Judiciary Committee at the time, was laying down a marker against President George H.W. Bush, saying once the “political season” had started, the president should back down and wait until after the election.
Mr. Biden went so far as to say that Mr. Bush shouldn’t even bother to nominate anyone, much less have the Senateapprove the pick — exactly the stance Republicans are now taking toward Mr. Obama.
“These are the Biden rules,” Sen. Chuck Grassley, the Iowa Republican who now chairs the Judiciary Committee, said Monday as he recounted the Biden speech on the Senate floor.
The attack comes as Republicans are stiffening their spines after a wobbly start to the political jockeying after Scalia’s death Feb. 13.
“One would have to go back more than a century to find a scenario where a president’s nominee for the Supreme Court was confirmed by the opposition party in the Senate when the vacancy occurred during an election year,” said Sen. Jeff Flake, Arizona Republican. “I’m not about to break new ground in the Senate, particularly when any nominee could so drastically shift the balance of the court.”
The death of the high court’s most forceful and consistently conservative justice has created an opening for Mr. Obama, who, if he were to win confirmation of a committed liberal justice, could send the bench careening to the left.
But standing in his way is not only a committed Republican opposition, which controls the Senate, but Democrats’ own long history of words and deeds that suggest they would not have approved a Republican president’s pick if circumstances were reversed.
The White House has already had to say Mr. Obama now regrets taking part in Democrats’ 2005 attempt to filibuster Justice Samuel Anthony Alito Jr. — the first time a partisan filibuster was ever launched against a Supreme Courtnominee.
Mr. Biden’s comments cut even deeper, with the former senator saying in his 1992 speech that not only does the Senate have the right to reject nominees, but presidents shouldn’t even try to send one to Capitol Hill in the middle of an election.
“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,” Mr. Biden said in his 90-minute speech, which was so long it spanned 15 pages of the Congressional Record. “That is what is fair to the nominee and is central to the process.”
He delivered the speech on June 25 of that year, in anticipation of a justice retiring at the end of the court’s term. In the event, no retirement came and his threat to stall a nominee was never tested.
In a statement Monday, Mr. Biden said his comments were being taken out of context. He pointed to other parts of his lengthy speech in which he called for senators and the executive branch to try to repair the process, which he said had been broken by ideological fights.
“While some say that my comments in June 1992 contributed to a more politicized nomination process, they didn’t prevent the Senate from fulfilling its constitutional duties, because there was no vacancy at the time,” he said. “During my career on the Judiciary Committee, I ensured the prompt and fair consideration of nine Supreme Court Justices, and the current Senate has a constitutional duty to do the same.”
Mr. Biden said during his time as chairman he held hearings on several nominees he opposed, and Democrats gave them floor votes — though they were defeated.
Among those was Judge Robert Bork, whose defeat at the hands of Senate Democrats helped ignite the partisan warfare over judges that continues to this day.
Democrats in the Senate now waved off Mr. Biden’s comments as irrelevant to the debate.
“It doesn’t make any difference to me. I wasn’t here then. I don’t believe that, and I don’t believe in the process of keeping the Supreme Court without a full complement for a year,” said Sen. Robert Menendez, New Jersey Democrat. “Equal justice under the law, which is what it says over the front of the Supreme Court, means a court that is fully functioning and can make decisions and hopefully doesn’t find itself tied too often.”
Sen. Richard Blumenthal, Connecticut Democrat, said voters want to see the president make a nomination and the Senate vote on it. “They want hearings and a vote. They want action,” he said.
Early on, polling suggested Americans were split on that question, but more recent polling indicates Democrats are winning the argument. A new survey released Monday by the Pew Research Center found 56 percent said the Senateshould hold hearings and a vote, compared to 38 percent who said the next president should make the nomination.
That Republicans would reject an Obama nominee seems certain. The question has instead become whether Mr. Obama should even bother to send a name up to the Senate, and whether the Senate would bother to hold hearings.
Sen. Susan M. Collins, Maine Republican, said she wanted to see the Senate go ahead with hearings if Mr. Obama submits a nominee. “For my part, I think regular order is the best way to proceed,” she said.
Majority Leader Mitch McConnell said Monday that Mr. Obama has the “authority to nominate.” But he said the Senate has “the right to withhold its consent.”
“Given that we are in the midst of the presidential election process, the chairman of the Judiciary Committee and I believe that it is today the American people who are best positioned to help make this important decision — rather than a lame-duck president whose priorities and policies they just rejected in the most recent national election,” Mr. McConnell said as he closed the Senate session.
President Trump had a great opportunity to repair some of that damage by nominating a moderate candidate for the vacancy, which was created when Justice Antonin Scalia died last February. Instead, he chose Neil Gorsuch, a very conservative judge from the federal Court of Appeals for the 10th Circuit whose jurisprudence and writing style are often compared to those of Justice Scalia.
If Judge Gorsuch is confirmed, the court will once again have a majority of justices appointed by Republican presidents, as it has for nearly half a century. For starters, that spells big trouble for public-sector labor unions, environmental regulations and women’s access to contraception. If Trump gets the chance to name another justice, the consequences could be much more dire.
In normal times, Judge Gorsuch — a widely respected and, at 49, relatively young judge with a reliably conservative voting record — would be an obvious choice for a Republican president.
These are not normal times.
The seat Judge Gorsuch hopes to sit in should have been filled, months ago, by Merrick Garland, the chief judge of the Court of Appeals for the District of Columbia Circuit, whom President Barack Obama nominated to the court last March. Judge Garland, a former federal prosecutor and 20-year veteran of the nation’s most important federal appeals court, is both more moderate and more qualified than Judge Gorsuch.ADVERTISEMENT
That meant nothing to Senate Republicans, who abused their power as the majority party and, within hours of Justice Scalia’s death, shut down the confirmation process for the remainder of Mr. Obama’s presidency. There would be no negotiations to release this hostage; the sole object was to hold on to the court’s conservative majority. The outrageousness of the ploy was matched only by the unlikelihood that it would succeed — until, to virtually everyone’s shock, it did.
The destructive lesson Senate Republicans taught is that obstruction pays off. Yet they seem to have short memories. After Senate Democrats refused to attend votes on two of Mr. Trump’s cabinet picks on Tuesday, Senator Pat Toomey of Pennsylvania said, “We did not inflict this kind of obstructionism on President Obama.” Even absent such dishonesty, any Democratic impulse to mimic the Republican blockade by filibustering Judge Gorsuch would be understandable. But Senate Democrats should be wary of stooping to the Republicans’ level, especially because any such effort is likely to prove futile, since Republicans have the votes to simply eliminate the use of the filibuster against Supreme Court nominees. The hearings should, however, present Democrats with an opportunity to probe Judge Gorsuch’s views.
So what might a Justice Gorsuch mean for the court? Like Justice Scalia, he is an originalist, meaning he interprets the Constitution’s language to mean what it was understood to mean when it was written — an approach that has led both men to consistently conservative results.
Judge Gorsuch’s similarities to Justice Scalia extend into several areas of the law. Since his appointment in 2006, by President George W. Bush, he has voted consistently in favor of religious-liberty claims, such as requests for exemptions for private companies and religious nonprofits that oppose the Affordable Care Act’s contraceptive mandate.
He is even more conservative than Justice Scalia in at least one area — calling for an end to the deference courts traditionally show to administrative agencies, like the Environmental Protection Agency, that are charged with implementing complex and important federal laws.
Given the events of recent days, senators should press Judge Gorsuch on how he would approach constitutional questions that have already arisen out of Mr. Trump’s actions as president, like his order barring refugees and immigrants from seven Muslim-majority countries, or his alleged violationof the Emoluments Clause of the Constitution.
While Judge Gorsuch’s views on abortion are not known, he has written extensively about assisted suicide and euthanasia. In his book on the topic, he wrote that “human life is fundamentally and inherently valuable, and that the intentional taking of human life by private persons is always wrong.” By himself, Judge Gorsuch would not upset the court’s balance on abortion rights or affirmative action, but if one of the more liberal justices or Justice Anthony Kennedy step down during Mr. Trump’s presidency, a solidly right-wing majority could quickly overturn those precedents.
Supreme Court nominations are among the most important decisions a president makes, and certainly the most enduring: A nominee like Judge Gorsuch could sit on the court for more than three decades. At a rally last summer Mr. Trump said: “Even if you can’t stand Donald Trump, you think Donald Trump is the worst, you’re going to vote for me. You know why? Justices of the Supreme Court.” That may have played well on the campaign trail, but Mr. Trump’s failure to choose a more moderate candidate is the latest example of his refusal to acknowledge his historic unpopularity and his nearly three-million-vote loss to Hillary Clinton. A wiser president faced with such circumstances would govern with humility and a respect for the views of all Americans.
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