By now the basic contours of the fight are clear: most Senate Republicans, in a brazen and unprecedented display, intend to maintain a year-long blockade against any Supreme Court nominee from President Obama, sight unseen.
Most Democrats, meanwhile, are urging the policymakers to simply follow the process spelled out by the Constitution.
GOP leaders have experimented with a variety of lazy excuses to defend the indefensible, and none has been especially coherent. But yesterday, it appeared that Republicans’ prayers had been answered, thanks to a 24-year-old video of a speech from Vice President Biden. The Washington Post reported:
C-SPAN on Monday posted a clip of a sprawling 90-minute address then-Senator Biden delivered on June 25, 1992, on the subject of reforming the Supreme Court confirmation process. Biden, in his fourth term and serving as Judiciary Committee chairman, spoke in anticipation of the end of court’s term that year – the traditional season for justices to announce their retirements.And if such a retirement came to pass, he said, President George H. W. Bush should “not name a nominee until after the November election is completed” and, if he did, “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
Republicans were deliriously happy. After all, if Joe Biden himself had called for a comparable blockade, endorsing a delayed process in a presidential election year, GOP senators could simply say they were honoring the standard the vice president created. It was, the right cried out in unison, the “game changer” they were waiting for.
Except, it really wasn’t.
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.