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.
In 2016, Biden seemingly abandoned his previous position, urging the Senate to give Garland a vote.
“Give Merrick Garland a vote. Look, folks, you don’t have to — my friends in the Senate, they don’t have to support Merrick Garland,” Biden
said. “You don’t have to support the chief judge of the [D.C.] Circuit. Vote no, but give him a vote.”
At the time, Biden warned that lawmakers were “setting an incredibly dangerous precedent.
“I’m prouder of being in the Senate over that time than anything I’ve done in my whole life, but don’t — don’t set this dangerous precedent,” he added.
However, in recent days, Biden has once again reversed course, unequivocally stating that, in the current case, the Senate “should not act until the American people select their next president.”
Republicans have been able to seize Biden’s fluctuating positions to justify their handling of the 2016 SCOTUS battle, as well as the upcoming fight.
“In other words, the so-called ‘Biden Rule’ cuts both ways: The GOP can use it to justify both actions, and there is enough difference between the two situations that Republicans have the energy they need to move forward now,” as Breitbart News
Some GOP leaders, such as Sen. Ted Cruz (R-TX), contend that 2016 was different in that the Senate and presidency lacked party unity. Additionally, Obama was an outgoing president, meaning there was no chance of America reelecting the man choosing the SCOTUS nominee, although a win for Clinton would have, likely, been viewed as confirmation for Obama.
“Twenty-nine times there has been a vacancy in a presidential election year. Now, presidents have made nominations all 29 times,” Cruz
explained during a Sunday appearance on ABC’s This Week, defending the president’s forthcoming action.
McConnell, speaking from the Senate floor on Monday, defended his vow to proceed with the process ahead of the election, citing 1888 as the last time an election-year Supreme Court vacancy was approved by a divided government.
“As of then, only six prior times in American history had a Supreme Court vacancy arisen in a presidential election year and the president sent a nomination that year to the Senate of the opposite party,” McConnell said.
“The majority of those times the outcome was exactly what happened in 2016. No confirmation,” he added.