In his strongest and most passionate comments to date, Vice President Joe Biden called on Senate Republicans on Thursday to consider the nomination of Judge Merrick Garland to fill the vacancy left by the sudden death of Justice Antonin Scalia and not “abdicate their responsibility.”
He expressed concern about a “genuine constitutional crisis” that he said would be born out of the “dysfunction of Washington.”
Biden warned about the perils of allowing important decisions to remain in “limbo” if an evenly divided court was unable to set a nationwide precedent in major cases. He said the effect of keeping a seat vacant for what could be hundreds of days could fracture the country.
“The framers designed our system to give one Supreme Court the responsibility of resolving conflicts in the lower courts,” he said and added that if those conflicts are allowed to stand “we end up with a patchwork Constitution.”
Biden reiterated the impact of the court’s work on everyday Americans, on issues such as race discrimination, separation of church and state, abortion and police searches.
“Look at the cases,” he said, adding, “the American people deserve a fully staffed Supreme Court of nine. “
“The longer this high court vacancy remains unfilled, the more serious the problem we will face — a problem compounded by turbulence, confusion, and uncertainty about our safety and security, our liberty and privacy, the future of our children and grandchildren,” Biden said.
And he noted he was fearful that the current gridlock in Congress would infect the high court.
“Dysfunction and partisanship are bad enough on Capitol Hill,” he said. “We can’t let the Senate spread that dysfunction to another branch of government — to the Supreme Court of the United States. We must not let it fester.”
‘Biden rule’
In his remarks, Biden sought to push back at Republican critics who are using his comments from a 1992 floor speech as ammunition to argue that he too once stressed the need for delaying confirmation hearings until after the political campaign season was over.
At the time, Biden was discussing a hypothetical vacancy and said the president — who was then George H.W. Bush — should “not name a nominee until after the November election is completed.” Supporters of Biden point to the fact that later in the same speech the then-Senate Judiciary Committee chairman pledged to consider a nominee “if the President consults and cooperates with the Senate or moderates his selection absent consultation.”
In Thursday’s remarks Biden, who served in the Senate for 36 years and spent nearly half that time as chairman or ranking member of the Judiciary Committee, said that during his tenure, every nominee got a committee hearing.
“There is no ‘Biden rule.’ It doesn’t exist,” he said.
Before the speech was delivered, a spokesman for Senate Majority leader Mitch McConnell, Don Stewart, dismissed the remarks as an attempt on the part of Biden to “clean up” past remarks that he had made by “claiming he didn’t really say what he said.”
McConnell has declined to meet with Garland although he called the judge the day his nomination was announced to wish him well and tell him personally that the Senate would not act.
On CNN’s State of the Union McConnell said, “This nomination ought to be made by the president we’re in the process of electing this year.”
Senate Judiciary Committee Chairman Charles Grassley similarly said Biden’s comments are a case of hypocrisy. In a statement the Iowa Republican said that Biden as chairman had failed to consider 44 judicial nominations.
“No matter how hard the White House tries to rewrite history, it can’t change then Chairmen Biden’s remarks explaining how the President and Senate should handle a Supreme Court nomination arising during a heated presidential campaign,” Grassley said. “As Chairman Biden explained, the hyper-political environment is bad for the nominee, the court, and ultimately the nation.”
Biden’s comments about the dysfunction of Congress echoed what Chief Justice John Roberts said three years ago during a talk at the University of Nebraska. Speaking of the other two branches of government, Roberts said, “It’s a period of real partisan rancor that I think impedes their ability to carry out their functions, and I don’t want it to spill over and affect us.”
More recently, in comments made before Scalia’s death, Roberts was asked about the confirmation process during a talk at New England Law School in Boston. He said that he didn’t think it was “functioning very well.” He noted that when Justice Scalia and Ginsburg were confirmed the votes were unanimous or nearly so, but in recent years the votes for Justices Elena Kagan, Sonia Sotomayor and Samuel Alito have been closer to party lines.
“That doesn’t make any sense,” Roberts said. “That suggests to me that the process is being used for something other than ensuring the qualifications of the nominees.”
Impact of 4-4 cases
The court has already released one 4-4 opinion in a case concerning the Equal Credit Opportunity Act. When the court is evenly divided, the lower court opinion is affirmed but no national precedent is set.
On Wednesday the court appeared to be closely divided in a much higher profile case concerning a challenge — brought by non profit religiously affiliated groups — to the Affordable Care Act’s requirement that insurance plan provide a full range of contraceptive coverage. If it turns out that the court splits 4-4 in that case, the opinion could cause confusion across the country where lower courts are split on the issue. So far eight appellate courts have ruled in favor of the president, while one, the 8th Circuit, has ruled in favor of the challengers.
But conservative activists said the vice president’s concerns about 4-4 decisions are misplaced, considering his actions in the Senate when roles were reversed.
“It was unfortunate and embarrassing to see Vice President Biden try to strike fear in Americans about how a temporarily divided 4-4 Court could threaten their freedom of speech and religion, particularly when Biden himself has stated that the costs of a divided Court are actually ‘quite minor,'” said Brian Rogers, executive director of America Rising Squared.