Immediately following the passing of Supreme Court Justice Ruth Bader Ginsburg, blue-check Twitterati swiftly condemned Senate Majority Leader Mitch McConnell, outraged by his commitment to holding a vote on the resulting high court vacancy during an election year.
“Hypocrite!” they cried. But the gold medalist of election-year Supreme Court nominations is Democrat presidential nominee Joe Biden, whose remarkable “triple Lindy” of position changes on the issue puts him in the pantheon of appointment acrobats.
In 2016, Senator McConnell successfully blocked President Obama’s election-year efforts to fill the vacancy left by Justice Antonin Scalia’s death.
In 2020, President Trump and Senator McConnell both announced they would fulfill their constitutional duties by moving the nomination of a successor forward – the very thing Democrats urged in prior years when it suited them.
That politicians change their positions based on circumstances is commonplace, particularly as our American politics have become more polarized.
Former Democratic Senate Majority Leader Harry Reid set the table for the coming showdown in 2013 by decreeing the “nuclear option” of eliminating the filibuster for most presidential appointments – a step Republicans warned would end the storied “comity” of the upper chamber, but whose predictions Reid recklessly ignored in favor of short-term gain.
Reid’s choice to benefit President Obama’s picks for various positions, will feature heavily in coming debates, but even in more idyllic times, Biden was no model of consistency.
In 1992, with Republican President George H.W. Bush in the White House, then-Senator Biden, the Chairman of the Senate Judiciary Committee, took to the Senate floor to issue a grave warning to the White House and Senate Republicans. If a vacancy occurred in the Supreme Court that year, President Bush should “not name a nominee until after the November election is completed.” Were the president to take this step, Biden stated “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
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Clearly, Biden did not want a Republican President nominating a conservative to the high court during an election year – and with Democrats controlling the Senate, he would have been in a position to make it so.
In 2016, Biden reversed course when the tables were turned – his party controlled the White House, Republicans, the Senate. Then-Vice President miraculously transformed his prior opposition to filling Supreme Court vacancies during election years into support for the notion, not even missing a beat to explain himself in the process.
In a jaw-dropping display of revisionism, Biden noted that back in 1992, “I [had] made it absolutely clear that I would go forward with the confirmation process, as chairman — even a few months before a presidential election — if the nominee were chosen with the advice, and not merely the consent, of the Senate — just as the Constitution requires.”
Concerning Senator McConnell’s decision to leave the Scalia vacancy open irrespective of who President Obama chose, Biden helpfully added that “Deciding in advance simply to turn your back before the president even names a nominee is not an option the Constitution leaves open. It’s a plain abdication from the Senate’s duty.”
Biden was all for a Democratic President—and a lame duck at that—nominating a liberal to the high court during an election year – even when the Senate was controlled by Republicans.
To be fair, in 2016 Biden stated that his words then were misunderstood, saying, "They completely neglected to quote my unequivocal bottom line, so let me set the record straight as they say: 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 Kennedy and Justice Souter,' end of quote."
Still, on the evening of Justice Ginsburg’s death, Biden shape-shifted yet again, reverting back to his 1992 “delay the vote” position.
“There is no doubt, let me be clear, that the voters should pick the president, and the president should pick the justice for the Senate to consider.” But voters did pick the president – and it’s Donald J. Trump’s prerogative under the Constitution to nominate the next Justice.
There is no “election year time out” clause in the Constitution; it exists only in the fevered dreams of the party that has no power to block an appointment through the normal political process.
Biden’s reversal of his reversal is a remarkable feat of opportunistic acrobatics, whose twists and turns are curiously unremarked by the media.
An attempt to distill Biden’s back-and-forth-and-back contortions to a rule yields the following: it is acceptable for a Democratic president to name a Supreme Court justice in an election year, but inappropriate for a Republican president to do the same.
Hypocrisy, thy name is Biden.