- The Washington Times - Thursday, March 24, 2016

Backpedaling on his pronouncements in 1992 about the wisdom of blocking Supreme Court nominees in an election year, Vice President Joseph R. Biden said Thursday it’s “ridiculous” that Senate Republicans are using his infamous words as justification to block President Obama’s nominee for the Supreme Court.

“You hear all this talk about the ‘Biden rule,’” Mr. Biden said at the Georgetown Law Center. “It’s frankly ridiculous. There is no Biden rule. It doesn’t exist.”

The vice president said the only rule he followed as chairman of the Senate Committee on the Judiciary was “the Constitution’s clear rule of advice and consent.”

His speech to law school students and faculty was intended to minimize the damage that his 1992 remarks are causing for Mr. Obama’s Supreme Court nominee, Judge Merrick Garland.

Senate Republicans say they won’t hold a hearing on the Garland nomination in this election year, and they’re citing Mr. Biden’s comments in 1992 to justify their actions. As chairman of the Judiciary Committee at the time, Mr. Biden said that Republican President George H.W. Bush should delay filling a Supreme Court vacancy, should one arise, until the presidential election was over. Mr. Biden said it was “essential” that the Senate refuse to confirm a nominee to the court until after the presidential election.

Republicans have seized on Mr. Biden’s old remarks, even though Senate Majority Leader Mitch McConnell of Kentucky vowed within hours of Justice Antonin Scalia’s death in February that Republicans wouldn’t consider any nominee put forward by Mr. Obama. And Mr. McConnell wrote in a law journal, decades ago, that “to carry out a program and altering the ideological directions of the court would seem to be a perfectly legitimate part of a presidential platform.”

Mr. Biden, now in full damage-control mode, said Thursday he wanted to “set the record straight.”

“I was speaking [in 1992] of the dangers of nominating an extreme candidate without proper Senate consultation,” Mr. Biden said. “I made it absolutely clear that I would go forward with the confirmation process as chairman, even a few months before [the] presidential election.”

In June 1992 Mr. Biden said many things in his 90-minute speech on the Senate floor, among them: “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. … It is my view that if a 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.”

His speech on Thursday had conservatives howling about the vice president talking out of both sides of his mouth. Adam Brandon, CEO of the conservative activist group FreedomWorks, called Mr. Biden’s speech “a pretty miserable attempt at damage control and the height of hypocrisy.”

“Joe Biden can’t walk back what he said in 1992, when he not only urged President Bush not to name a nominee but also suggested that the Senate Judiciary, then chaired by him, wouldn’t hold confirmation hearings if a nominee was named,” Mr. Brandon said in a statement.

Republican National Committee Chairman Reince Priebus said Mr. Biden’s remarks “can’t be taken seriously.”

Biden and the current Democrat Senate leadership have all supported Republicans’ current position in one way or another,” Mr. Priebus said. “The only reason why President Obama is demanding Republicans breach decades of bipartisan precedent of not confirming election-year nominations to the Supreme Court is so he can take the court dramatically to the left and cement his legacy of rampant executive overreach.”

Conservatives also blasted Republican Sen. Jerry Moran of Kansas Thursday for saying he favors holding hearings for Judge Garland. Mr. Moran told constituents this week that he believes “the process ought to go forward.”

Rick Manning, president of the conservative activist group Americans for Limited Government, called Mr. Moran’s position “incomprehensible.”

“This is an outright betrayal of the very GOP Senate majority which Moran successfully led the fight to achieve,” Mr. Manning said.

Mr. Biden also said leaving the Supreme Court split 4-4 between conservative and liberal blocs, without a ninth justice, would create a “patchwork Constitution.” He said the Court will be unable to resolve conflicting rulings among appellate courts on basic freedoms such as the right to be free from unreasonable searches or the right to free speech.

“Laws will be constitutional in some parts of the country and unconstitutional in others,” Mr. Biden said. “A patchwork constitutional is hardly a national constitution at all.”

But Republicans pointed out that, in his 1992 remarks on the Senate floor, Mr. Biden made the opposite argument. Back then, he said the costs of a divided Court “are quite minor compared to the costs that a nominee, the president, the Senate and the nation would have to pay for what would assuredly be a bitter fight.”

Mr. Biden said that when he served as chairman of the Senate Judiciary Committee or as the panel’s ranking Democrat, all eight Supreme Court nominees received confirmation votes.

“Every nominee was greeted by committee members,” Mr. Biden said. “Every nominee got a committee hearing. And every nominee, including Justice [Anthony] Kennedy in an election year, got an up-and-down vote. Not much at the time. Not most of the time. Every, single, solitary time.”

But back in 1992 Mr. Biden also made it clear that holding up a Supreme Court nomination in an election year wasn’t just practical, it was the best thing to do for the country.

“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 would be permitted to fill it,” Mr. Biden said at the time. “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.”

Judge Garland said Thursday he will sit out all cases before the U.S. Court of Appeals for the D.C. Circuit while his nomination is pending. In a statement provided to the National Law Journal, the court said Judge Garland will “cease participating in cases and matters, but will continue with his administrative duties as chief judge and as a member of the Judicial Conference of the United States.”

He won’t participate in 15 cases that he heard before he was nominated on March 16.

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