Biden in 2016: President Has 'Constitutional Duty' to Nominate Supreme Court Justice, Even Months Before Election

Former Vice President Joe Biden declared in 2016 that if he were chairman of the Senate Judiciary Committee he would push ahead with the nomination of a Supreme Court justice "even a few months before a presidential election."

Biden penned a New York Times op-ed in March 2016—just weeks after the death of Justice Antonin Scalia—which accused Senate Republicans that year of neglecting their "Constitutional duty" by stonewalling President Barack Obama's Supreme Court nominee until after the November general election. Senate Majority Leader Mitch McConnell cited a so-called "Biden rule" as justification for delaying Merrick Garland's nomination, pointing to a 1992 Biden speech that demanded President Bush wait until after that year's election to appoint a Supreme Court replacement.

"I know there is an argument that no nominee should be voted on in the last year of a presidency. But there is nothing in the Constitution — or our history — to support this view," Biden wrote in March 2016, demanding Senate Republicans review Garland's nomination.

Biden, who spent nearly two decades as chairman or ranking Democrat on the Senate Judiciary Committee, sought to clarify his namesake rule in 2016. He explained in an op-ed and remarks at Georgetown Law School that his 1992 remarks were only aimed at "polarizing" nominees and were not plainly "obstructionist."

Obama echoed Biden's same point in 2016: "When there is a vacancy on the SCOTUS, the President is to nominate someone, the Senate is to consider that nomination ... There's no unwritten law that says that it can only be done on off-years. That's not in the Constitution text."

But after Justice Ruth Bader Ginsburg's death Friday, Senate Republicans are now preparing to follow much of Biden and Obama's advice from their 2016 comments that urged GOP senators to move ahead with Garland's voting process as promptly as possible. Biden's 2016 Times op-ed ridiculed the idea that "no nominee should be voted on in the last year of a presidency."

"I made it absolutely clear that I would go forward with a confirmation process as [Senate Judiciary] 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," Biden told attendees of a Georgetown Law School event in 2016.

"The Senate will need to fulfill its constitutional responsibility by considering, debating and voting on that nominee," the then-vice president wrote in the March 2016 Times op-ed, which detailed the rule named after him decades earlier. "My purpose was not to obstruct, but to call for two important goals: restoring a more consultative process between the White House and the Senate in filling Supreme Court vacancies, and encouraging the nomination of a consensus candidate who could lower the partisan temperature in the country."

Forty-three of the 61 total Supreme Court justices who have been nominated since 1900 were confirmed in under 46 days, the amount of time left before this past Friday and Election Day on November 3.

"As I write this, nearly all Republican senators have said that they will refuse to consider any nominee — sight unseen. At a time when we need to reduce the gridlock in our politics, this would extend Congress's dysfunction to the Supreme Court," Biden wrote in 2016.

Biden continued in the op-ed: "I called on the president to wait until after the election to submit a nomination if a sitting justice were to create a vacancy by retiring before November. And if the president declined to do that, I recommended that the Judiciary Committee not hold hearings "until after the political campaign season is over."

McConnell said he plans to hold a vote on a Trump nominee as soon as possible, which only requires 50 'yes' votes in a majority chamber with 53 total Republicans.

"Americans re-elected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary," McConnell said in a statement Friday after reports first emerged of Ginsburg's death. "Once again, we will keep our promise. President Trump's nominee will receive a vote on the floor of the United States Senate."

Newsweek reached out to the Biden campaign and McConnell's office Saturday afternoon for additional remarks.

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Former Vice President Joe Biden declared in 2016 that if he were chairman of the Senate Judiciary Committee he would push ahead with the nomination of a Supreme Court justice "even a few months before a presidential election." BRENDAN SMIALOWSKI / Staff/Getty Images
Biden in 2016: President Has 'Constitutional Duty' to Nominate Supreme Court Justice, Even Months Before Election | Politics