Biden's Rules Apply Today

• In 1992, Senator Joe Biden argued against confirming an election-year Supreme Court nominee because the confirmation battle would be too bitter and divisive. If that was true then, it is still true today.

• Senate Democrats have spent the last three decades undermining and politicizing the confirmation process. President Obama has repeatedly demonstrated his contempt for Congress and the Constitution.

• The best way for the Senate to do its job today is to avoid a bitter, partisan, political battle, and delay confirmation of a new Supreme Court justice until the next president is in office.

Vice President Biden argued in a 1992 Senate floor speech that an election-year Supreme Court vacancy should be filled by the next president. The heart of his argument was that the process had disintegrated so much that an election-year confirmation battle would harm the nation by being too bitter and corrosive. If this argument applied in 1992, it applies even more so in 2016.

Senate Democrats have spent the last three decades undermining order and precedent in the confirmation process, and have rendered the process petty and political. Meanwhile, President Obama has repeatedly demonstrated his disregard for Congress and the Constitution.

Senate Democrats broke new ground in politicizing nominations

Over the past three decades, Senate Democrats have undermined and politicized the confirmation process. Senate Democrats were the first to:

• Politicize the confirmation process: Disintegration of the confirmation process began in 1987, when Senate Democrats changed the substantive confirmation standards. They waged an all-out political assault on Robert Bork’s nomination to the Supreme Court because he would not promise to advance their political views from the bench. Their attacks were so aggressive that they spawned the verb “to bork,” defined by Oxford Dictionaries as to obstruct “by systematically defaming or vilifying.”
• Intentionally slow the confirmation process: Days after President George W. Bush’s inauguration, Senate Democrats pledged to use “whatever means necessary” to defeat Bush judicial nominees. That is exactly what they did. While President Bush was in office, Senate Democrats:
  • Forced more clotures votes on judicial nominees than for all previous presidents combined.
  • Quadrupled the percentage of nominees that required a roll call vote. This included a dramatic increase in the number of nominations with no opposition who were still subjected to a roll call vote.
  • Forced the wholesale return of all judicial nominees at the August recess for the first time in history. This was eight times more nominations than had been returned at any point in the previous 20 years.
  • Filibuster an appellate court nominee: Senate Democrats were also the first to filibuster an appellate court nominee. They filibustered Miguel Estrada’s nomination to the D.C. Circuit seven times in 2003. That same Congress, Senate Democrats blocked a total of 10 Bush judicial nominations from receiving an up-or-down vote, even though each of these nominees was supported by a majority of the Senate.
  • Filibuster a Supreme Court nominee: Senate Democrats then attempted a filibuster on a Supreme Court nominee for the first time in Senate history, with the nomination of Samuel Alito in 2006. Senators Reid, Leahy, Durbin, Schumer, Clinton, Biden, and Obama all voted against allowing an up-or-down vote.
  • Eliminate the filibuster on nominees: When President Obama entered the White House, Senate Democrats changed their view of the filibuster, decrying its use against Obama nominees. In November 2013, Senate Democrats broke the rules of the Senate by invoking the “nuclear option” to abolish the filibuster for all but Supreme Court nominees. The nuclear option empowered Democrats to ignore minority objections and to stuff the federal courts with nominees who would rubberstamp the president’s regulatory agenda.

Democrats created the judicial confirmation process we have today, following no rule but political expediency in their efforts to control the makeup of the federal courts. Due to their actions, the confirmation process has become a partisan, political battleground. This politicization would be multiplied in an election-year Supreme Court confirmation battle.

“[I]t would be our pragmatic conclusion that once the political season is under way, 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 is central to the process. Otherwise, it seems to me, we will be in deep trouble as an institution.” – Senator Joe Biden, 06-25-1992

OBAMA'S CONTEMPT FOR CONGRESS AND THE CONSTITUTION

President Obama’s contempt for Congress would further degrade the process. His repeated efforts to undermine the constitutional separation of powers and override the will of Congress cast serious doubt on his ability to select a nominee who would uphold the Constitution. The process to consider such a nominee would be a bitter fight arising out of warranted mistrust.

President Obama’s unconstitutional actions include:

• Non-Recess, Recess Appointments: President Obama attempted to bypass the Senate’s advice and consent power when he claimed that he could decide when the Senate was in recess. He made several “recess” appointments to the Consumer Financial Protection Bureau, National Labor Relations Board, and the Centers for Medicare and Medicaid Services. In a 9-0 decision, the Supreme Court rejected this power grab.
• Attorney General in Contempt: Eric Holder was the first attorney general ever to be held in contempt by Congress when the administration refused to respond to a congressional subpoena seeking information into the failed gun-smuggling operation Fast and Furious.
• Immigration Executive Action: After repeatedly stating that he did not have the authority to do so, President Obama attempted to override the will of Congress and grant amnesty to more than 4 million illegal immigrants by executive fiat.
• Rewriting Obamacare: From delaying the employer mandate, to exempting favored groups from unpopular provisions, to extending unapproved plans, the Obama administration has unilaterally rewritten the health care law more than 40 times.
• Guantanamo Detainees to the U.S.: The president has repeatedly declared his intention to bring Guantanamo detainees to the United States, despite clear laws prohibiting it.

"DO YOUR JOB" AND FOLLOWING THE BIDEN RULES

Contrary to Democrats’ claims, the Senate’s job is not to bend to the will of the president. It is not to consider or confirm whomever the president nominates to any position. The Senate’s job is to protect the Constitution and to serve the American people. That requires the Senate to determine the best way to fulfill its advice and consent responsibility in each situation.

“Others may fret that this approach would leave the court with only eight members for some time, but as I see it, the cost of such a result … [is] quite minor compared to the cost that a nominee, the President, the Senate, and the Nation would have to pay for what would assuredly be a bitter fight, no matter how good a person is nominated by the President.” – Senator Joe Biden, 06-25-1992

Considering the damage Senate Democrats have done to the confirmation process – and the president’s disregard for the Constitution and Congress – the best way for the Senate to do its job today is to avoid a bitter, partisan, political battle that would further damage the process. That means giving the American people a voice in the selection of the next Supreme Court justice and not confirming a nominee until the new president is elected.