- The Washington Times - Sunday, September 20, 2020

Democratic presidential nominee Joseph R. Biden on Sunday pleaded with rank-and-file GOP senators to help put the brakes on confirming a new Supreme Court justice, arguing that voters deserve a chance to give him the power to nominate a successor to the late Justice Ruth Bader Ginsburg.

Mr. Biden said President Trump and Senate Majority Leader Mitch McConnell can do what they want, but that he was appealing to moderate senators to follow their conscience.

“Don’t vote to confirm anyone nominated under the circumstances President Trump and Sen. McConnell have created,” Mr. Biden said in a speech in Philadelphia. “Don’t go there.”

Mr. Biden has said he plans, if elected president, to nominate a Black woman to the Supreme Court.

He is not releasing a list of his potential nominees, as Mr. Trump has done, saying on Sunday that doing so could open up the candidates to political pressure or personal attacks.

“It’s a game to them — a play to gin up emotions and anger,” he said of Mr. Trump’s list.

The death of Justice Ginsburg on Friday has instantly reshaped the contours of a presidential race that Mr. Biden has been leading in most public polling and has set up an election-year battle royale on Capitol Hill to fill the vacancy.

Mr. Trump and Mr. McConnell vowed to move quickly, while at least two Republican senators — Susan M. Collins of Maine and Lisa Murkowski of Alaska — say the Senate should not confirm a new justice before the Nov. 3 election, which could result in a new president as well as reshape the balance of power in the Senate.

Currently, Republicans hold a 53-47 majority in the Senate and Vice President Mike Pence would break any ties.

Mr. Biden said Senate Republicans can’t simply change course after blocking President Obama’s nomination of Judge Merrick Garland in 2016, when the GOP cited the looming presidential election as a reason to press pause.

He said Mr. McConnell created a new rule then: “Absolutely no hearing, no vote for a nominee in an election year — period, no caveats.”

Mr. McConnell has said that last time he was abiding by Mr. Biden’s comments in 1992 but that the situation is different now because the White House and Senate are controlled by both parties.

The Kentucky Republican invoked Mr. Biden in a letter to colleagues explaining his approach in 2016 compared to now.

“We followed the Biden Rule in 2016, which provided that the Senate will not fill Supreme Court vacancies that arise in presidential years when the presidency and the Senate majority are held by opposing parties,” he said.

Then the chairman of the Senate Judiciary Committee, Mr. Biden had warned in June 1992 against election-year action on a hypothetical Supreme Court nomination by President George H.W. Bush.

Mr. Biden said Sunday that the so-called “Biden Rule” was “based on the fiction that I somehow believe[d] there should be no nomination in an election year.”

“It’s ridiculous,” he said. “The only rule I’ve ever followed related to the Supreme Court nomination is the Constitution’s obligation for senators to provide their advice and their consent to a president’s judicial nominee.”

In 2016, shortly after Mr. Obama nominated Judge Garland, Mr. Biden tried to qualify his previous remarks. He said in a speech to Georgetown University law students that talk of a “Biden Rule” was “ridiculous.”

“I said, and I quote, ‘if the president consults and cooperates with the Senate, or moderates his selections … then his nominees may enjoy my support, as did Justice [Anthony] Kennedy and Justice [David] Souter,’” he said.

Mr. Biden also claimed he made clear that he would move forward with the nomination process even shortly before an election “if the nominee were chosen with the advice, and not merely the consent, of the Senate.”

Mr. Biden said in 2016 that voting no on a nominee is always an option.

“But saying nothing, seeing nothing, reading nothing, hearing nothing, and deciding in advance simply to turn your back — before the president even names a nominee — is not an option the Constitution leaves open,” he said.

He also said the American people deserved a “fully staffed” Supreme Court of nine justices.

• David Sherfinski can be reached at dsherfinski@washingtontimes.com.

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