The debate over nominating a new Supreme Court justice has brought out the worst in political party leaders. Republican leaders have vowed to not give any of the Obama administration’s nominees a hearing. Ted Cruz even promised to filibuster any of Obama’s nominees.
“This should be a decision for the people,” Cruz said. He explained that the general election should decide who gets to replace Justice Scalia. If Democrats want to confirm a new justice, they would need to secure the presidency, Cruz added that the American people do not want a court that will strip their religious liberties, “mandate unlimited abortions on demand, partial birth abortion with taxpayer funding and no parental notification.” He also said that the American people do not want a court that will “write the Second Amendment out of the Constitution.”
One republican senator, Chuck Grassley, explained his position against nominating and confirming a justice during an election year by citing the “Biden Rule”. For those unfamiliar with the term, the “Biden Rule” refers to Vice President (then Senator) Joe Biden’s speech on a hypothetical Supreme Court nomination in 1992, George H. W. Bush’s last year of presidency. At the time Biden said that in the event of a vacancy the Senate should consider delaying confirmation until a new president was elected. It makes perfect sense that Senate Republicans have eagerly used Biden’s words against him. After all, even small children know that hypocrisy cripples arguments. However, by trying to validate something that Biden said about a then-hypothetical issue, since there was no vacancy in 1992, shows just how little ground some of the GOP leaders have in defending their argument. But this so-called “Biden Rule” is not the trump card that these senators have been looking for.
Biden himself weighed in on the matter by writing an op-ed in The New York Times and giving a speech at Georgetown University Law Center earlier this month.
In his article, Biden states that the Senate’s refusal to cooperate is “an unprecedented act of obstruction,” which could stain the legacy of all those opposed to a nominating a justice in 2016. Biden also points out that those who believe in this rule are cherry-picking. Although Biden admits that he called on Bush to wait until the election was over to submit a potential nomination, he insists that “[his] purpose was not to obstruct,” but rather to restore a more consultative process between the White House and the Senate and to encourage the nomination of a consensus candidate. Worth noting here is that Biden’s 1992 speech was delivered in June which, considering that the typical duration for electing a justice is 70 to 80 days, was much closer to election day than this case is.
In addition to Biden’s counterargument to the “Biden Rule,” a recent survey by the Pew Research Center shows that a majority of the public wants the Senate to act. The report, based on a nationally-representative sample of 1,002 adults, indicates that 56 percent of respondents favor senate hearings and confirmation votes on Obama’s nominee. On the other hand, 38 percent believe that the Senate should wait for the next president to nominate a justice.
A Fox News poll on a random national sample of 1,031 registered voters showed similar results: 62 percent of individuals believed that the vacancy should be filled now, while 34 percent believed that it is too late for a president to nominate someone.
These numbers, as well as the Senate’s inherent constitutional obligation, make it very clear that the dysfunction in Washington is spreading. Certain party leaders have become emboldened by their own positions of power, and forget that, when they say that the “election should decide,” the people already have.
