"Biden Rules" Explained

Could the GOP be holding out for THIS Supreme Court?
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President Obama has nominated Merrick Garland to the Supreme Court. Once again, senate Republicans are citing the "Biden Rules." They claim that the then-chairman of the Senate Judiciary Committee set forth rules that prevent them from considering any nominee in the last year of a president's term.

In a 1992 speech on the floor of the Senate, Joe Biden said...

"It is my view that if the president goes the way of Presidents Fillmore and [Andrew] 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. It would be our pragmatic conclusion that once the political season is underway... action on a Supreme Court nomination must be put off until after the election campaign is over. That is what is fair to the nominee and essential to the process."

There was no nominee in play in 1992. Biden's "rules" were neither adopted by the Judiciary Committee nor the Senate. They were set forth in the wake of the very contentious confirmation of Clarence Thomas -whose dirty laundry was in conflict with Anita Hill's privacy. The rules themselves were procedural:

• Advise sources that any information the Committee obtained would be placed in a nominee's FBI file and be available on a confidential basis to the Senate before voting on the nomination;

• Hold closed, confidential sessions about all Supreme Court nominees; and

• Meet routinely with nominees in closed session, on the record, and under oath about any investigative charges."

If the above doesn't sound to you like the "Biden Rule" GOP leaders are citing, chalk it up to politics. The only "rule" cited by senate Republicans is taken from the text of his speech. His speech reflects his personal opinion and his concern for domestic tranquility. And realistically of course, it's also a political position. But to "seriously consider" postponing a theoretical late-term confirmation hearing is a far cry from flatly refusing an actual nominee in the spring of an election year.

Biden concluded his 1992 speech with a statement that gives the lie to today's GOP position....

"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."

Such a position is completely absent from GOP rhetoric today. And until they soften their position to permit a hearing and and up-or-down vote by the Senate, Republicans are promoting a blatantly false equivalency.

Verna Williams, Judge Joseph P. Kinneary Professor of Law, University of Cincinnati College of Law, says...

"But, in discussing the history of such nominations, Mr. Biden noted that when a President sought to appoint a justice in the summer or fall of an election year - just a few months before the election--that typically resulted in failure. In contrast, when the President selected candidates before the summer, the Senate confirmed them. Not a rule - an observation."

(Article changed on March 17, 2016 at 12:11)