‘Will we allow the people to continue deciding who will nominate the next justice, or will we empower a lame-duck president to make that decision on his way out the door instead?’
WASHINGTON, D.C. – U.S. Senate Majority Leader Mitch McConnell made the following remarks on the Senate floor on Tuesday, February 23, 2016 regarding “The Biden Rules” for a Supreme Court vacancy:
“The signs of the season are all around us.
“Volunteers are knocking.
“Caucusers are caucusing.
“Voters are voting.
“Countless ballots have been cast already in places as diverse as Council Bluffs, Nashua, and Myrtle Beach. Thousands more Nevadans are making their voices heard today, and Americans in over a dozen more states will have an opportunity to do the same next week.
“It’s campaign season, we’re right in the middle of it, and one of the most important issues now is this: Who will Americans trust to nominate the next Supreme Court justice?
“Presidential candidates are already debating the issue on stage.
“Americans are already discussing the issue amongst themselves.
“And voters are already casting ballots — in the case of the Democratic Leader’s constituents, this very day — with the issue top-of-mind
“One might say this is an almost unprecedented moment in the history of our country.
“It’s been more than 80 years since a Supreme Court vacancy arose and was filled in a presidential election year — and that was when the Senate Majority and the President were from the same political party.
“Since we have divided government today, it means we have to look back almost 130 years to the last time a nominee was confirmed in similar circumstances. That’s back when politicians like Mugwumps were debating policies like Free Silver and a guy named Grover ran the country. Think about that.
“As Senators, it leaves us with a choice.
“Will we allow the people to continue deciding who will nominate the next justice, or will we empower a lame-duck president to make that decision on his way out the door instead?
“The question of ‘who decides’ has been contemplated by many, including our friends on the other side of the aisle.
“We already know the incoming Democratic Leaders’ view.
“The Senior Senator from New York didn’t even wait until the final year of President George W. Bush’s term to declare that that the Senate ‘should reverse the presumption of confirmation’ and ‘not confirm a Supreme Court nominee except in extraordinary circumstances.’
“We also know how the current Democratic Leader feels about judicial nominees from a President of the other party.
“‘The Senate is not a rubber stamp for the executive branch,’ he said. ‘Nowhere in [the Constitution] does it say the Senate has a duty to give presidential nominees a vote. It says appointments shall be made with the advice and consent of the Senate. That’s very different than saying every nominee receives a vote.’
“But what about the views of the top officer of this body, the President of the Senate?
“Joe Biden was a Senator for many decades.
“He was a loyal Democrat. He developed enduring friendships in both parties. And before becoming Vice President, he served here as Chairman of the Judiciary Committee.
“Let’s consider what he said in circumstances similar to where we find ourselves today.
“It was an election year with campaigns already underway, a President and a Senate Majority from different political parties, and here’s what appeared on Page A25 of The Washington Post:
Sen. Joseph R. Biden Jr. (D-Del.), chairman of the Judiciary Committee, has urged President Bush not to fill any vacancy that might open up on the Supreme Court until after the November election. Warning that any election-year nominee ‘would become a victim’ of a ‘power struggle’ over control of the Supreme Court, Biden said he would also urge the Senate not to hold hearings on a nomination if Bush decided to name someone.
“The article continued:
If someone steps down, I would highly recommend the president not name someone, not send a name up,’ Biden said. ‘If he [Bush] did send someone up, I would ask the Senate to seriously consider not having a hearing on that nominee.’
“And then, this:
‘Can you imagine dropping a nominee, after the three or four or five decisions that are about to made by the Supreme Court, into that fight, into that cauldron in the middle of a presidential year?’ Biden went on. ‘I believe there would be no bounds of propriety that would be honored by either side…The environment within which such a hearing would be held would be so supercharged and so prone to be able to be distorted.’ ‘Whomever the nominee was, good, bad or indifferent,’ he added, ‘would become a victim.’
“As the current Chairman of the Judiciary Committee pointed out yesterday, Biden went even further here on the Senate floor. He said that ‘[it does not] matter how good a person is nominated by the President’ because it was the principle of the matter — not the person — that truly mattered.
“Biden cautioned that ‘Some of our nation’s most bitter and heated confirmation fights have come in presidential election years’ but also reminded colleagues of several instances when Presidents exercised restraint and withheld from making a nomination until after the election.
“One of them was Abraham Lincoln.
“It offers an example others may choose to consider.
“President Obama, like Lincoln, once served in the Illinois Legislature. It’s a place he returned to just the other day to talk about healing the divide in our country. Here’s what he said:
‘It’s been noted often by pundits that the tone of our politics hasn’t gotten better since I was inaugurated, in fact it’s gotten worse… one of my few regrets is my inability to reduce the polarization and meanness in our politics.’
“This is his moment.
“He has every right to nominate someone.
“Even if doing so will inevitably plunge our nation into another bitter and avoidable struggle, that is his right.
“Even if he never expects that nominee to actually be confirmed but rather to wield as an electoral cudgel, that is his right.
“But he has also has the right to make a different choice.
“He can let the people decide and make this an actual legacy-building moment rather than just another campaign roadshow.
“Whatever he decides, his own Vice President and others remind us of an essential point.
“Presidents have a right to nominate just as the Senate has its constitutional right to provide or withhold consent.
“In this case, the Senate will withhold it.
“The Senate will appropriately revisit the matter after the American people finish making in November the decision they’ve already started making today.
“But for now, I ask colleagues to consider once more the words of Vice President Biden.
‘Some will criticize such a decision and say it was nothing more than an attempt to save the seat on the Court in the hopes that a [member of my party] will be permitted to fill it, but that would not be our intention, Mr. President, if that were the course to choose in the Senate to not consider holding hearings until after the election. Instead, it would be our pragmatic conclusion that once the political season is under way, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.’
“Fair to the nominee. Essential to the process. A pragmatic conclusion.
“The words of President Obama’s own number two. What else needs to be said?”