The Supreme Court Should Be Above Politics: A History of the Biden Statement

Why is everyone so unconciliatory about the Supreme Court? For the past few months both sides have offered one obfuscation after another about the past and future of the Supreme Court.

One of the keys to today's Republican intransigence is the statement made by Vice President Biden in 1992. Then he was the chairman of the Senate Judiciary Committee and George H. W. Bush was President. It was June of an election year and he said, “If a Supreme Court Justice resigns … President Bush should …. not name a nominee until after the November election is completed … The Senate Judiciary Committee should seriously consider not scheduling hearings on the nomination until after the political campaign season is over.”

Anyone reading the above or watching the video can see that he meant only in the event that a justice was to resign. Biden clearly would have viewed this as a political maneuver, to have an older Republican justice resign right before the election, and be replaced by a young Republican Justice. Frankly, it's amazing that this trick of keeping the Supreme Court in the hands of one party has never been attempted. But his intent was not to deny George W. H. Bush a fair confirmation hearing if a justice died.

The first line does not indicate how he would have acted if a Supreme Court justice died during the election. Even though his statement was about a hypothetical situation that never occured, it seems that even if a justice had died or resigned Biden would have scheduled hearings after the November election. Most significantly, he appears to have asked President Bush to withhold nominating any person for the spot until after the election. Biden says that after November the Senate Judiciary Committee would have heard and approved any reasonable justice. This is because Biden understood then, that though the Supreme Court is political, it shouldn't be politicized. More on that later.

The current Republican Chairman of the Senate Judiciary Committee, Charles Grassley recently said, “that it's been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year.” There were nominations that occurred close to within a year, but a year is a common unit of measurement. It's not fair to say he was being manipulative by using the word year. If Grassley had said a year and three days, that would be a totally different conversation.

Democrats immediately took issue with the phrase “nearly 80 years”. They wanted to demonstrate that nominating a justice during an election year is not a republican tradition, but only a chance event that occurred late in the history of the United States. But here is a secret. All past Presidents were following the Biden statement as it is explained in this essay: they just didn't know it. The three Presidents that nominated a supreme court justice and had them approved in an election year, nominated them after the election was over. President John Adams nominated Chief Justice John Marshall in January of 1801 after the November voting of 1800. Presidents Van Buren and Harrison also nominated justices in February of 1841 and January of 1893 respectively (the inauguration of the president used to be March 4^th until the 20^th amendment in 1933).

Assuming Biden meant what he said in 1992; that a president should not nominate a Supreme Court Justice during the election season, he should say it again.

Even if he didn't mean it, and was only using the statement for political gain for the Democrats, there are a number of reasons why his statement would be an exceptional rule.

First, it allows Biden to walk back his attempts to distance himself from his own statement. He has said the rule “doesn't exist”, and while it was never put into practice, it remains in the minds of many. By accepting his own declaration he would reduce the partisan rancor. The Republicans could also gain from this outcome, by removing this topic from political discussion. Political polls and pundits alike believe Republicans are likely to risk Senate and House seats by obstructing the President's nomination.

If this alone isn't enough to convince both sides to consider this compromise, there are two more factors.

While Democrats initially decided to go ahead and challenge Republicans, searching for a weakness in their defense, it has become increasingly clear there is no easy resolution. In continuing their relentless pursuit of the seat, they have taken to politically shaming their opponents. Everyone loves a good conflict, but this is not in the best interest of the country.

The political shaming only reinforces that the Court is not above politics. Most people know this intellectually. Justices vote in a manner that relates to their experiences and beliefs. When judging if a law violates the Constitution (as the United States Constitution or the Marbury v. Madison case empowers them to do), a justice uses their experiences to evaluate its constitutionality. Yet, if the court sinks too low into politics it risks become another institution that is not trusted. For the judges who have the ultimate decision on what the law means, to lose the trust of the people, it would be disastrous for the unity of the country.

And so, while members on both sides (like Republican Senator Grassley – oddly criticizing the politicization of the Supreme Court on the Republican Chief Justice) have dragged the independence of the Supreme Court onto the edge of the bank, others need to prevent it from being plunged into the muck.

At the very least, the Democrats have nothing to lose. Since their nominee is being rebutted, they could highlight what Biden actually said, and withdraw the nomination. They could then return to the fight after the November election. The Republicans could save face during an election (that they will surely lose if Donald Trump is nominated). If the Republicans win the Presidency and then refused again to nominate President Obama's Supreme Court pick, they would then certainly be on the wrong side. But for the Democrats it will make little difference whether their pick is rebutted now or later, and they will preserve a bit of the integrity of the Supreme Court.

The best choice for the United States is to honor the complete comments that Biden made in 1992, for now and all future nominations.

Note: If you have access to the NYT, I would highly recommend this cool graphic about the nomination and acceptance of the Supreme Court Justices. I couldn't find anywhere in the article to work it in.