Senate Republicans Take “Unprecedented” Position: The Next President Should Fill The Vacancy

Mitch McConnell Says SCOTUS Vacancy “Should Not Be Filled Until We Have A New President.” CBS News reported on February 13 that Senate Majority Leader Mitch McConnell argued that “the American people‎ should have a voice in the selection of their next Supreme Court Justice”:

Senate Majority Leader Mitch McConnell, R-Kentucky, believes the U.S. Senate should wait 11 months for the next president to be sworn in before confirming a Supreme Court justice to replace the late Justice Antonin Scalia.

“The American people‎ should have a voice in the selection of their next Supreme Court Justice,” the conservative leader said in a statement following the news of Scalia's death. “Therefore, this vacancy should not be filled until we have a new president.” [CBS News, 2/13/16]

Supreme Court Experts And Reporters Say The Senate Would Be “Abdicating Its Constitutional Responsibility” If It Refuses To Hold Confirmation Hearings For A SCOTUS Nominee. Media Matters reported on February 16 that legal scholars and Supreme Court reporters argued “the president has a duty to appoint a replacement for Scalia” and that the Senate would be “abdicating its constitutional responsibility if it does not hold hearings to approve or reject such nominees”:

Several legal scholars and Supreme Court beat reporters contend the president has a duty to appoint a replacement for Scalia, adding that the U.S. Senate is abdicating its constitutional responsibility if it does not hold hearings to approve or reject such nominees.

“It would be highly unusual for any president NOT to appoint someone,” Linda Greenhouse, a former New York Times Supreme Court reporter from 1978 to 2008 and a 1998 Pulitzer Prize winner, said via email. “It's up to the Republicans to explain why they would refuse even to consider a qualified nominee.”

Stephen Wermiel, a professor of constitutional law at American University Washington College of Law is an expert in Supreme Court jurisprudence, agreed: “Obama has a right and a duty to make an appointment. It is not desirable by any measure to have the Supreme Court go an entire year with only eight justices instead of nine and have to resolve things by 4-4 ties and by other methods. The Constitution says the president shall appoint, it doesn't say only when it's politically convenient.”

Tony Mauro, a National Law Journal reporter who has covered The Supreme Court for 36 years, called it “one of a president's most important duties.”

“It's in the Constitution to nominate, it doesn't mean the Senate has to confirm,” he said. “I've been surprised that people are suggesting that he shouldn't even nominate anyone, that seems a little over the top. Nominating is one of the most important things that a president does. There is a vacancy on the court, so it is his duty.” [Media Matters, 2/16/16]

ABC's George Stephanopoulos: “This Sounds Like A New Rule ... That A President Can't Pick A Supreme Court Justice In His Or Her Final Year.” On the February 14 edition of ABC's This Week with George Stephanopoulos the host said the GOP's restriction on the president nominating a justice in his final year sounded like “a new rule”:

JOHN KASICH: You know what I said about the president, and, look, he's going to send somebody. The Senate's going to do nothing, George. You know my sense is, you're going to have a presidential election here. People will in a very unusual way indirectly sort of pick the next judge of -- justice of the Supreme Court. It's pretty interesting.

GEORGE STEPHANOPOULOS (HOST): It is pretty interesting, but this sounds like a new rule now. A rule that a president can't pick a Supreme Court justice in his or her final year.

KASICH: Well, George, you know, look, you know how polarized everything is. We have got to be real about things, and what I don't want to see is more fighting and more recrimination which is exactly what we're going to see. Let's just face up to this. We are very divided between President Obama and the Congress. And it's, you know, and look. When you have that kind of division, it's really hard to get this done. If I were president of the United States, you know, and I could keep the Congress together, of course I would send somebody. But it would probably be a different situation. But right now, just looking at it. It's one of the reasons I'm running for president. You know, they're Republicans and Democrats really in most cases before they're Americans. But the divisions are real. So let's just wait for an election, move beyond it, and then whoever we pick as a justice and gets confirmed will have broad consensus across the country and can start the healing process. [ABC, This Week with George Stephanopoulos, 2/14/16]

CNN Presidential Historian: “Of Course” There's No Precedent Barring Obama From Filling SCOTUS Vacancy. During the February 17 edition of CNN's New Day, CNN presidential scholar Douglas Brinkley said President Obama was “doing his job” by promising to nominate a justice to the Supreme Court:

CHRIS CUOMO (HOST): Douglas, let's start with you. Just so that we can all have history in context. This is really about politics. That's the argument that we've been forwarding here on New Day. When you look at the Constitution, when you look at historical precedent, is there any legitimate basis for saying we don't do this in the final year of a presidential term? We traditionally don't this, as a matter of fact, we hold off on these types of appointments and these types of hearings. Is there any basis for that in fact?

DOUGLAS BRINKLEY: Well, of course not. That's not in our U.S. Constitution, and that was the point President Obama was making from Rancho Mirage yesterday, that he's doing his job. He has a vacant seat to fill. He plans to nominate somebody, and he wants the Senate to act responsibly. But as you intimated, this is a heavy political season. 2016's one of the most brutal moments in partisan warfare in the recent annals of American history. So it's unlikely the President's going to be able to get anybody through this year. But he very well might be able to get a Senate hearing, particularly if he can get Senator Chuck Grassley of Iowa, you know, at least the bucking Mitch McConnell crowd and saying, look, maybe we do, at least need to give -- if Obama picks somebody -- a public hearing, we'll have to see on that. [CNN, New Day, 2/17/16]

MSNBC's Luke Russert: Senate GOP Refusing To Vote On Obama Nomination “Unprecedented In Modern History.” On the February 23 edition of MNSBC's The Place for Politics, Luke Russert reported that McConnell and Senate GOP leadership are defying precedent by planning to not vote or hold hearings on an Obama Supreme Court nominee, saying that “it's been a practice for the Senate Judiciary Committee since it's founding in 1816 to move forward on a nomination that comes from the president”:

THOMAS ROBERTS: So, Luke, this is about filling vacancies in an election year. The specific words, though, of Vice President Biden are about resignation of a justice, not so much about a justice's death while still serving on that lifetime appointment. Is there a distinction in semantics to make about that? 

LUKE RUSSERT: Well, that's the important distinction that Democrats are trying to put forward, Thomas, and Harry Reid said that so much in a press conference, saying, “look, Joe says a lot of things, it's comparing apples to oranges.” However, Republicans have seized on this and said “this is the Biden Rule.” They've also pointed to past comments made by Reid and Schumer where they suggest holding up judges in some respect. The issue though for Republicans is that what they're going to do is unprecedented in modern history. Every nominee, pending nominee, for the Supreme Court in the last century has gotten a vote on the Senate floor. It's been the practice of the Senate Judiciary Committee since its founding in 1816 to move forward on a nomination that comes from the president. The fact that the Republicans won't even schedule a Judicial Committee hearing, won't even have a vote on the floor, they're going all in on this. We'll see how it plays out in those swing states in 2016, but Mitch McConnell being very, very fervent about it today saying he won't even meet with President Obama's nominee to the Supreme Court because he does not think it means anything. [MSNBC, The Place for Politics, 2/23/16]

Media Credulously Report That GOP's Extreme Position Echoes Biden Position From 1992

Wash. Post: Biden “Call[ed] For Halting Action On Supreme Court Nominees In An Election Year.” On February 22 The Washington Post reported that Biden's 1992 speech “included a call for halting action on Supreme Court nominees in an election year” and “rebuttals to virtually every point Democrats have brought forth in the past week to argue for the consideration of Obama's nominee”:

Senate Republicans determined to block President Obama's promised Supreme Court nominee embraced an unlikely ally Monday: Vice President Biden.

More precisely, they embraced a fourth-term Sen. Joseph R. Biden Jr. (D-Del.) who, while serving in 1992 as chairman of the Senate Judiciary Committee, delivered a sprawling, 90-minute floor address that included a call for halting action on Supreme Court nominees in an election year.

[...]

Republicans wasted no time highlighting Biden's long-forgotten remarks. The current Judiciary Committee chairman, Sen. Charles E. Grassley (R-Iowa), rose on the Senate floor Monday afternoon to deliver fulsome praise for Biden and the newly unearthed speech.

Grassley set out what he called “Biden Rules”: There ought to be no presidential Supreme Court nominations in an election year, and if there is such a nomination, the Senate ought to “seriously consider” not holding hearings on the nominee.

In the 10 days since Scalia's death, politicians of both parties have been forced to square their current positions on whether or not to confirm Obama's promised nominee with their past statements on judicial nominations.

For instance, Senate Majority Leader Mitch McConnell (R-Ky.), who now favors leaving the nomination to Obama's successor, has been confronted with a 45-year-old law review article in which he suggested that “political matters” should not be relevant to the Senate's consideration of a Supreme Court nomination.

But Biden's remarks were especially pointed, voluminous and relevant to the current situation. Embedded in the roughly 20,000 words he delivered on the Senate floor that day were rebuttals to virtually every point Democrats have brought forth in the past week to argue for the consideration of Obama's nominee. [The Washington Post, 2/22/16]

NY Times: In 1992 Biden “Was Making The Same Point That Senator Mitch McConnell ... Has Made.” The New York Times reported on February 22 that in his 1992 speech Joe Biden made “the same point that Senator Mitch McConnell of Kentucky, the majority leader, has made -- a position opposite to the one that he and President Obama have taken”:

Senate Republicans on Monday seized on a 1992 speech by Joseph R. Biden Jr., then a senator, in which he argued against any Supreme Court appointment during a presidential campaign, grabbing an early advantage in what is likely to be a protracted battle to replace Justice Antonin Scalia.

[...]

Mr. Biden was making the same point that Senator Mitch McConnell of Kentucky, the majority leader, has made -- a position opposite to the one that he and President Obama have taken. The video upended a day when Senate Democrats had hoped to attack the Republican position as obstructionist. [The New York Times, 2/22/16]

NY Post: Biden Took “The Same Stance GOP Senate Leadership Is Taking Now.” The New York Post reported on February 22 that Biden had “advocated that Supreme Court appointments be delayed during a presidential election year,” which it claimed was “the same stance GOP Senate leadership is taking now following the death of Justice Anthony Scalia”:

Vice President Joe Biden once advocated that Supreme Court appointments be delayed during a presidential election year - the same stance GOP Senate leadership is taking now following the death of Justice Anthony Scalia.

Biden put forward the hypothetical in a recently unearthed speech on June 25, 1992, what would turn out to be the final seven months of President George H.W. Bush's term.

“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,” Biden said then as chairman of the Senate Judiciary Committee.

There was no vacancy at the time of Biden's speech.

Still, conservative groups found the old C-SPAN clip and are using it to bolster their argument that President Obama shouldn't be allowed to fill Scalia's spot, with his White House term ending in less than a year. [New York Post, 2/22/16]

AOL: “Vice President Biden Is Making The Opposite Argument” He Made in 1992 In “Saying The Senate Should Work With President Obama To Determine A Nominee.” AOL reported on February 23 that “while Senate Democrats have said the decision [on SCOTUS nominations] belongs to our current president ... that hasn't always been the case” and that Biden had “changed his mind on election year Supreme Court nominees”:

Fast-forward 24 years, and now Vice President Biden is making the opposite argument, saying the Senate should work with President Obama to determine a nominee. But he's hardly the first to change his view on the issue. [AOL.com, 2/23/16]

But Biden Was Talking About A Possible Vacancy By Resignation, Not By Death, And Was Not Suggesting He Would Refuse To Consider Any Nomination Until The Next President

Biden Said In 1992 Speech That President Bush Should “Not Name A Nominee [To The Supreme Court] Until After The November Election” Because He Predicted “One Of The Bitterest, Dirtiest Presidential Campaigns ... In Modern Times.”  A C-SPAN video released on February 22 showed Joe Biden in 1992 as Chairman of the Senate Judiciary Committee calling on former President George H. W. Bush “not [to] name a nominee until after the November election is completed” in the event of a vacancy by resignation, because of heightened partisanship. However, Biden continued that “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”:

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 the 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 ever -- until after the political campaign season is over.

And I sadly predict, Mr. President, that this is going to be one of the bitterest, dirtiest presidential campaigns we will have seen in modern times.

I'm sure, Mr. President, after having uttered these words, some, some will criticize such a decision and say that it was nothing more than an attempt to save a seat on the court in hopes that a Democrat will be permitted to fill it. But that would not be our intention, Mr. President, if that were the course we were to choose as a senate to not consider holding the hearings until after the election. Instead it would be our pragmatic conclusion that 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. That is what is fair to the nominee and essential to the process. Otherwise, it seems to me, Mr. President, we will be in deep trouble as an institution.

[...]

I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate. Therefore I stand by my position, Mr. President. 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. [C-SPAN, 2/22/16]

Biden Explains His Statement Is Being Misrepresented, And Under His Leadership The Senate Confirmed A GOP Nominee During An Election Year

Joe Biden: Claims That He Opposed Filling A SCOTUS Vacancy In An Election Year Are “Not An Accurate Description Of My Views.” In a February 22 statement Vice President Joe Biden said his 1992 comments were about “a hypothetical vacancy” and that in fact he “encouraged the Senate and the White House to 'work together to overcome partisan differences,'” which “remains [his] position today.” Biden also highlighted his record as chairman of the Senate Judiciary Committee, pointing out that “he presided over the process to appoint Justice Anthony Kennedy, who was confirmed to the Supreme Court in a presidential election year.” As reported by The New York Times on February 23, Biden's aides also pointed out that “he had been warning against filling a vacancy created by a voluntary resignation of a justice rather than a vacancy created by an unexpected death. In any event, no such vacancy occurred”:

Vice President Joe Biden released a statement Monday saying an excerpt of a speech he gave in 1992 does not accurately portray his views on the filling of a Supreme Court vacancy during an election year and was taken out of context."

Nearly a quarter century ago, in June 1992, I gave a lengthy speech on the Senate floor about a hypothetical vacancy on the Supreme Court," he said in the statement."

Some critics say that one excerpt of my speech is evidence that I oppose filling a Supreme Court vacancy in an election year. This is not an accurate description of my views on the subject."

[...]

But Biden said in the statement Monday that in that same 1992 speech, he encouraged the Senate and the White House to “work together to overcome partisan differences to ensure the Court functions as the Founding Fathers intended.”

“That remains my position today,” he said.

Biden then touted his record as Judiciary Committee chairman, claiming it's “hard to beat.” He said he presided over the process to appoint Justice Anthony Kennedy, who was confirmed to the Supreme Court in a presidential election year."

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 in the statement.

“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.” [The Hill, 2/22/16; New York Times, 2/23/16]

MSNBC: Biden's Speech Was “The Opposite” Of “A Partisan Blockade.” On February 23, The Rachel Maddow Show producer Steve Benen wrote on MSNBC.com's The Maddow Blog that Biden's statement that he would support a nominee if President Bush “consults and cooperates with the Senate, or moderates his selections absent consultation” did not “sound like a call for a partisan blockade against any and all nominees, sight unseen. It sounds like the opposite.” Benen also noted that “there's a qualitative difference between a hypothetical set of circumstances and actually implementing a brazenly partisan scheme that's never been attempted in American history,” and added that “to characterize Biden's speech as some kind of game-changer, or proof of a standard that Republicans can exploit now, is a mistake”:

For observers who appreciate details, some obvious troubles probably jumped out right away. For example, in 2016, there's an actual vacancy on the high court, while in 1992, there was not. There's a qualitative difference between a hypothetical set of circumstances and actually implementing a brazenly partisan scheme that's never been attempted in American history. 

There's also the matter of the date: Biden's 1992 speech was delivered at the end of June, not long before Congress' summer recess. That's not at all similar to declaring in mid-February that a Supreme Court vacancy must go unfilled for a year.

But more important still is the part of the 1992 speech that went overlooked. ThinkProgress noted that, in the same remarks, Biden added that if the then-Republican 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.” 

That doesn't sound like a call for a partisan blockade against any and all nominees, sight unseen. It sounds like the opposite. 

Let's be clear about a core truth: when it comes to judicial nominees, there are no angels. Last week, I tried to find someone on either side of the aisle who (a) is still in Congress; and (b) has been completely principled and consistent on the issue, regardless of which party was in control at the time.

I couldn't find anyone. Literally, no one. Given the fact that the parties seem to simply swap scripts every time power changes hands, anyone lamenting the hypocrisy on display is on firm ground.

But to characterize Biden's speech as some kind of game-changer, or proof of a standard that Republicans can exploit now, is a mistake. The details matter, and in this case, they offer the right very little. [MSNBC, 2/23/16]

New York Magazine:  Biden Did Not Advocate “Flat-Out Blocking The President From Any Nomination, However Moderate Or Well-Qualified.” As explained by New York Magazine's Jonathan Chait, “never before in American history has the Senate simply refused to let the president nominate anybody at all simply because it was an election year,” and claims to the contrary are “demonstrably false.” Chait added that attempts to equate past Democratic positions with the current Republican obstructionism also fail because “the clear fact is that [Democrats] didn't kill that system and they didn't create the new one that is taking its place. The current Senate Republicans did”:

A second example of Democrats allegedly advocating the current Republican position comes from recently unearthed 1992 remarks by Joe Biden, then a senator. But Biden was not advocating a blockade of any nomination by then-president George Bush. He was insisting that Bush compromise ideologically. “I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate,” Biden said. “Therefore I stand by my position, Mr. President, 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.”

It is certainly true that Biden, like Schumer, was demanding broader latitude for the Senate. Both these remarks are within the historic tradition of senators tussling over how much say their chamber should have in the ideology of a new justice. But neither of them advocated flat-out blocking the president from any nomination, however moderate or well-qualified.And maybe the old system, in which social norms dictate that the Senate allow the president to put his ideological imprint on the Court, is simply untenable in a polarized age. Maybe that system was bound to perish. (That's the case I made.) And maybe the Democrats would have wound up becoming the party to kill that old system if they found themselves in the position Republicans currently occupy. But the clear fact is that they didn't kill that system and they didn't create the new one that is taking its place. The current Senate Republicans did. [New York Magazine, 2/23/16]