President Obama‘s nomination of DC Circuit Court Chief JudgeMerrick Garland has escalated the fight to replace deceased Supreme Court Justice Antonin Scalia, and Senate Majority Leader Mitch McConnell (R-KY) has taken to citing something called “The Biden Rule” as justification for not taking up Garland’s nomination, or any other from the current president.
That “rule” is, of course, not actually a rule at all, but rather one in a sea of bipartisan pull-quotes that have been deployed by one side or the other in order to prove that, gee whiz, senators like to get their way on lifetime appointments. In Biden’s case, the quotes in question come from a two-minute stretch from a June 25, 1992 speech on the floor of the U.S. Senate:
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.
The Senate, too, Mr. President, must consider how it would respond to a Supreme Court vacancy that would occur in the full throes of an election year. It is my view that if the President goes the way of Presidents Fillmore and Johnson and presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.
There have been several thorough and well-written pieces put out to describe the many ways in which this is bullshit, but I prefer a simpler approach. Here's what Biden said minutes earlier, which does not apply to the Scalia vacancy:
The tradition against acting on Supreme Court nominationsin a Presidential year is particularly strong when the vacancy occurs in the summer or fall of that election season. Thus, while a few Justices have been confirmed in the summer or fall of a Presidential election season, such confirmations are rare–only five times in our history have summer or fall confirmationsbeen granted, with the latest–the latest–being the August 1846 confirmation of Justice Robert Grier.
In fact, no Justice has ever been confirmed in September or October of an election year–the sort of timing which has become standard in the modern confirmation process. Indeed, in American history, the only attempt to push through a September or October confirmation was the failed campaign to approve Abe Fortas’ nomination in 1968. I cannot believe anyone would want to repeat that experience in today’s climate.
I know Republicans would like us all to think that February and March are liberal hoaxes, but sadly, they are not, and they are neither summer nor fall. If Republicans want to make their own argument about vacancies in February of an election year, that's fine, but then don't go around trying to blame Joe Biden, or if they do, they should have to listen to everything Biden tells them to do.