Vice President Biden said Thursday that President Obama, in an effort to win confirmation from a Republican Senate, had named a more moderate judge to the U.S. Supreme Court than he might otherwise have done.
In a speech at the Georgetown University Law Center, Biden said the unwillingness of the Republican majority to reciprocate in any way threatens to move congressional dysfunction to the Supreme Court.
The vice president said President Obama made a deliberate decision to consult with the Republican leadership and tailor his choice, in part, to allay GOP concerns.
"We've reached out," Biden said. " 'Who do you want?' 'Who do you think — what type of person should we nominate?' The president did 'his duty' and 'sought advice,' as the Constitution commands, and he ultimately chose the course of moderation."
He called Republican senators' talk of the so-called Biden Rule "ridiculous," contending GOP senators had cherry-picked a speech he gave in 1992 to make it appear to say something it did not.
Senate Majority Leader Mitch McConnell coined the phrase "Biden Rule," referring to a speech Biden made in 1992 about the potential of considering a Supreme Court justice nominated by George H.W. Bush in that election year.
"In the case of Obama's nomination of Garland, Democrats have argued that the Supreme Court seat should be filled immediately because the court needs a deciding vote.
"Biden in his 1992 speech addressed that issue, saying that some people 'may fret that this approach would leave the Court with only eight members for some time. But as I see it, Mr. President, the cost of such a result, the need to re-argue three or four cases that will divide the justices four to four are 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, if that nomination were to take place in the next several weeks.' "
But Biden's comments were hypothetical, as there was no court vacancy at the time. And Biden was not suggesting that a nomination be delayed until a new president was sworn in but rather only until after the presidential election.
In his 18 years as chairman or ranking member of the Senate Judiciary Committee, Biden noted, every one of the nine Supreme Court nominees that came before him was greeted by committee members, every nominee got a hearing, and every nominee was reported out of committee to the Senate floor, "even if they didn't have sufficient votes to pass ... because I believe the Constitution says the Senate must 'advise and consent,' " Biden said. "And every nominee, including Justice Kennedy in an election year, got an up and down vote."
If the Senate does not act on the nomination of Merrick Garland to the Supreme Court, Biden said, then the Senate risks moving its own dysfunction to the nation's highest court.
An evenly divided court, Biden said, will not be able to resolve many of the nation's pressing legal issues for more than a year, and the rights of individuals will be determined not by the Supreme Court, but by the lower courts, and the "geographical happenstance" of where people live.