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Joe Biden in 1992: Bush better not pick a Supreme Court nominee before the election

Dylan Matthews is a senior correspondent and head writer for Vox's Future Perfect section and has worked at Vox since 2014. He is particularly interested in global health and pandemic prevention, anti-poverty efforts, economic policy and theory, and conflicts about the right way to do philanthropy.

Well, this is awkward.

C-SPAN has resurfaced video of a floor speech delivered by then-Senate Judiciary Committee Chair Joe Biden on June 25, 1992. In it, Biden explicitly calls on then-President George H.W. Bush to not nominate anyone to fill whatever Supreme Court vacancies should arise between then and the presidential election in November, and suggests that if Bush did put forth a nominee, the Judiciary Committee might not hold hearings.

That is, of course, exactly the argument that Senate Majority Leader Mitch McConnell and his allies have been making ever since Justice Antonin Scalia died on February 13 — that President Obama should let the seat stay vacant because it's an election year.

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.

And I sadly predict, Mr. President, that this is going to be one of the bitterest, dirtiest presidential campaigns we will have seen in modern times.

I'm sure, Mr. President, after having uttered these words, some will criticize such a decision, and say that it was nothing more than an attempt to save a seat on the court in hopes that a Democrat will be permitted to fill it. But that would not be our intention, Mr. President, if that were the course we were to choose as a Senate, to not consider holding hearings until after the election.

Instead, it would be our pragmatic conclusion that once the political season is underway — 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 essential to the process. Otherwise, it seems to me Mr. President, we will be in deep trouble as an institution.

Biden's comments since Scalia's death directly contradict his earlier stance. In an interview with Minnesota Public Radio's Cathy Wurzer on February 18, Biden mocked the idea of waiting until after the election to appoint a nominee: "To leave the seat vacant at this critical moment in American history is a little bit like saying, 'God forbid something happen to the president and the vice president, we're not going to fill the presidency for another year and a half.'"

He sounded a similar note in an interview with Rachel Maddow, saying that Senate Republicans were only promising to block a nominee because they want to get "out ahead of Ted Cruz," and declaring, "We have a dysfunctional Congress now. We don't need an institutionally dysfunctional Supreme Court." Same goes for his interview with Politico's Michael Grunwald in which he noted, "There are a whole hell of a lot of people who Republicans who have already voted for" whom he thinks they should confirm again for the Court vacancy.

There did not turn out to be any vacancies in 1992, when Biden decried election year nominations. Two aging justices did wind up waiting to retire until Bill Clinton took office: the liberal Harry Blackmun, and the mostly conservative but JFK-appointed Byron White. And Clinton's picks did change the Court. While Stephen Breyer is about as liberal as Blackmun, Clinton replaced White with Ruth Bader Ginsburg, who is substantially to White's left. (White dissented in the case creating police Miranda warnings, and in Roe v. Wade, which he called "an exercise in raw judicial power.")

Biden can protest that he was merely speaking hypothetically, and that June is further along in the campaign season than February. And, of course, perhaps he just changed his mind on the merits. But a skeptical observer could be forgiven for finding his change of heart rather convenient.

Update: Some liberal outlets are pushing back on this, focusing on a part later in the speech where Biden suggests some openness to a moderate nominee. That doesn't really change the substance of his other comments, but you could make the case that it means he was taking a more moderate view than McConnell is today. I personally don't buy it — he clearly seems to be talking about the next administration, not Bush — but watch for yourself: