There’s been something of an uptick in liberal journalists, nervous about the emergence of another Supreme Court vacancy, re-litigating the Merrick Garland fight from 2016:
Antonin Scalia died on this day in 2016, after which every single Republican Senator came to the conclusion that it was too late to consider a replacement because of the impending election. They cited a standard that they believed Joe Biden had set years prior.
— Sam Stein (@samstein) February 13, 2020
Perhaps some Republicans argued that it was too late to consider Antonin Scalia’s replacement because of an impending presidential election. GOP leadership’s case for not taking up the Garland nomination — which was their constitutional prerogative — was more specific. Mitch McConnell took to the floor of the Senate and quoted a 1992 Biden speech, in which the then-senator argued — also preemptively, as there was no vacancy on the Court at the time — that a presidency and Senate controlled by two different parties should delay any new confirmation until after the next election because the debate would create widespread rancor and undermine the process. (If you want to read more about this topic, go here.)
Whether you believe Biden’s speech is precedent-setting or not is one thing. Skipping the core rationalization for his argument, though, is highly misleading.
Here is what Biden said:
Should a justice resign this summer and the president move to name a successor, actions that will occur just days before the Democratic Presidential Convention and weeks before the Republican Convention meets, a process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself.
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.
Like me, you may find Biden’s position completely unpersuasive. There are always elections. Circumstances are never ideal. The correct argument for 2016 Republicans to have adopted was: ‘We’ve already helped Barack Obama put two Constitution-busting justices on the Court, and now we have an ethical duty to do everything within our power to stop him from doing it again.’