The Biden Rule: Comments from a Speech Two Decades Ago Are Suddenly a Rule

Judge Merrick Garland got emotional during his Supreme Court nomination ceremony in the Rose Garden.  And since Senate Majority Leader Mitch McConnell (R-KY) invoked an excerpt from a 24-year-old speech and called it a rule in order to block his nomination, emotions around Merrick Garland continue to run hot.


President Obama and Vice President Biden applaud Chief Judge Merrick B. Garland in the Rose Garden of the White House announcing Chief Judge Garland as President Obama’s nominee to the United States Supreme Court, March 16, 2016. (Official White House Photo by Chuck Kennedy)

On March 16, 2016, President Obama nominated Judge Garland to fill the vacancy on the Supreme Court left by the death of Justice Antonin Scalia.  Judge Garland, 64, cried as the President announced his nomination.   And then he waited in uncertainty for eight months.

Sen. Orrin Hatch (R-UT) once said Judge Garland would be a “consensus nominee” to the Supreme Court and confirmed, “no question.” Then came the ‘Biden Rule.’

“The Senate will continue to observe the Biden Rule so that the American people have a voice in this momentous decision,” said McConnell said on March 16 in a speech on the floor of the Senate.

The Republicans held to the pledge by McConnell to block any Obama nominee in order to leave the nomination opportunity to the next president.  They refused to hold confirmation hearings for Judge Garland, breaking with Senate protocol for a Supreme Court nominee.

In the days leading up to the election, Judge Garland followed the normal nominee procedures. He spent weeks with his team preparing for hearings that never took place, running mock Judiciary Committee Interrogation sessions, and meeting with Senators, including about a dozen Republican senators who agreed to meet him.  He submitted the nominee questionnaire and a full account of his writings and opinions to the Judiciary Committee before confirmation hearings, as required.

All the while, he continued to perform his administrative responsibilities at the appeals court.

His suspense ended on election night when Donald Trump won the election.  He resumed his position as chief judge on the United States Court of Appeals for the District of Columbia Circuit, where he has been since 2013.


By Senate Democrats (SCHUMER MEETS WITH JUDGE GARLAND) [CC BY 2.0 creativecommons.org/licenses/by/2.0]

Meanwhile, Judge Neil M. Gorsuch was nominated by President Trump and had the hearing Judge Garland was denied.  The Senate confirmed Gorsuch’s nomination to the Supreme Court on April 7, 2017 and he was sworn in on April 10.

For many, the whole affair has a smell that never dissipates.

So What is the ‘Biden Rule’ on Supreme Court Nominations in an Election Year?

The source Senate Republicans used to justify not considering an Obama’s nomination to the Supreme Court during an election year was a 1992 floor speech by then-Chairman of the Senate Judiciary Committee, Senator Joe Biden (D-DE).

However the so-called Biden Rule was conceived under circumstances with significant differences which should be pointed out.  But first, here is an excerpt from Biden’s 1992 speech, which came on the heels of the contentious Clarence Thomas nomination:

Mr. President, where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is a partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue. 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.

Later in the speech, Biden said he would consider a moderate Supreme Court nominee.

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. But if he does not, as is the President’s right, then I will oppose his future nominees as is my right.

McConnell invoked the Biden Rule in March of 2016, while Biden’s floor speech was on June 25, 1992, more than three months later in the election cycle, and there was no Supreme Court vacancy to fill.  Additionally, the Senate never voted to adopt a rule delaying consideration of a nominee until after the election.


Credit: Francis J. Carroll

Biden addressed the Senate President to urge delay if a vacancy did appear, however,  he said the nomination process should be put off until after the election, which was on Nov. 3, 1992, not until the next president began his term, which is McConnell did.

Biden said that if Bush were to nominate someone, the Senate Judiciary Committee should consider not scheduling confirmation hearings after the campaign.  That would have given the Senate over two and a half months for the confirmation.  This differs from Senate Republicans’ refusal to ever consider any nominee put forth by Obama.  Not after Election Day.  Not ever.

Furthermore, McConnell based his position on a claim that the American people should have a voice in who provides a name for consideration on the Supreme Court, but he ignored the fact that the American people voiced their opinion twice that Obama should be the President, an office which is constitutionally obligated to fill a vacant Supreme Court position.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s