Did Biden Lie About The “Biden Rule”? And Does It Matter?

As I outlined here, the historical precedents claimed as justification by Republican Senators refusing even to consider Merrick Garland’s nomination to the Supreme Court don’t actually support their position. The precedents actually support holding hearings and a vote. Highlights:

• The last time a vacancy opened on the court during in an election year was 1932. The Republican Senate confirmed Republican president Hoover’s nominee in 9 days.
• The last time a vacancy opened in an election year with adversaries controlling the Senate and White House was March of 1888. Grover Cleveland’s nominee was confirmed in 81 days by a Republican Senate.

Since Garland’s nomination, Senator Orrin Hatch of Utah has emerged as the leading voice on the Republican side, which seems to have settled on a statement by then-Judiciary Committee Chairman Joe Biden proffered on the Senate floor on June 25, 1992 while laying out a broad argument for changing the Supreme Court confirmation process. Twisting the blade of what they clearly consider to be an effective weapon, they have dubbed it “the Biden Rule.”

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.

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.

Recently Biden said that the quotes the GOP is using were taken out of context. “I made it absolutely clear that I would go forward with the confirmation process, as chairman — even a few months before a presidential election — if the nominee were chosen with the Advice, and not merely the Consent, of the Senate — just as the Constitution requires.”

But Ed Whalen, former Harvard law graduate, Scalia clerk, and member of President George W. Bush’s Office of Legal Counsel, argues here that Biden’s explanation is an attempted rewrite. Whalen notes that Biden laid out his speech in three parts; the second part is specific to the 1992 election year environment, and the third part is a discussion of potential future process changes. The passage oft-quoted by the GOP is in the second part, and clearly applies to the election year of 1992. The part Biden and others have cited to claim Biden would have allowed a vote on a “mainstream” nominee in 1992 is in the third part of the speech.

“So when Biden now claims, in a carefully prepared speech, that this statement about nominations ‘in the next administration’ somehow presented his ‘unequivocal bottom line’ about how he would approach a nomination made to a vacancy arising in the 1992 election year, he is making an outrageous lie.”

I think Whalen’s right, to a point: Biden’s explanation this week doesn’t work. But this is a complete red herring — who cares if Biden lied or not? Either the argument is strong or it’s not. And those who claim Biden’s 1992 argument is strong may be being a bit deceitful as well.

Biden wasn’t talking about a vacancy during any part of the 1992 election year, which is what the GOP has implied. The year was half over before Biden made the speech, and he specifically said “if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer…” Yes, he was talking about a hypothetical vacancy. But claiming Biden’s late-June comments about a future vacancy apply to a February vacancy strains credulity.

And to make this link without even mentioning that Scalia died more than twice as long before election day strikes me as dishonest.