The Democrats have become somewhat unglued at the prospect of President Trump nominating someone to replace Justice Ruth Bader Ginsburg before the November election. They have said that if they win the Senate, they will add justices to the Supreme Court to blunt the influence of President Trump’s appointees and that they will end the filibuster (which allows the minority in the Senate to have some degree of power). It is becoming obvious that they have no intention of ‘playing well with others.’ Considering how they have handled some nominations in the past (Robert Bork, Clarence Thomas, Brett Kavanaugh, to name a few), we can expect a true ‘scorched earth’ policy when someone is nominated. They are very upset at the prospect of the President naming a Justice during an election year. But they were also upset when the Senate refused to consider the nomination of Merrick Garland. Mitch McConnell cited the ‘Biden Rule’ as the reason the nomination was not considered. So what is the Biden rule?
In a speech given on June 25, 1992, Joe Biden, who was then Chairman of the Senate Judiciary Committee stated:
Given the unusual rancor that prevailed in the Thomas nomination, the need for some serious reevaluation of the nomination and confirmation process and the overall level of bitterness that sadly infects our political system and this Presidential campaign already, it is my view that the prospects for anything but conflagration with respect to a Supreme Court nomination this year are remote at best.
Of Presidents Reagan’s and Bush’s last seven selections of the Court, two were not confirmed and two more were approved with the most votes cast against them in the history of the United States of America.
We have seen how, Mr. President, in my view, politics has played far too large a role in the Reagan-Bush nominations to date. One can only imagine that role becoming overarching if a choice were made this year, assuming a Justice announced tomorrow that he or she was stepping down.
Should a Justice resign this summer and the President move to name a successor, actions that will occur just days before the Democratic Presidential Convention and weeks before the Republican Convention meets, a process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the President, to the nominee, or to the Senate itself.
Mr. President, where the Nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue. As a result, it 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.
In 2016, the Democrats said there was no ‘Biden rule.’ Now there is a ‘Biden rule.’ So which is it? Either you believe that the Merrick Garland nomination was handled properly and the rule should be followed or you don’t. This is a glaring example of why Americans do not trust politicians to do the right thing.
There was a valid argument in 2016. The President was a lame duck, and the Senate was controlled by the opposing party. If the President were a Republican and the Senate controlled by the Democrats, would the Democrats have acted any differently than the Republicans? I believe that is the real question here.