Biden Also Gave 'Biden Rule' Speech in 2005; Reid, Podesta Were All For It


  • “The Founders set up a system in which the President nominates and the Senate has the power to give or withhold -- or withhold -- its ‘advice and consent.’'"

  • "Specifically, Article 1, Section 5 of the Constitution states that each House may determine its own rules for its own proceedings. ... The text contains no limitations or conditions. This clause plainly vests the Senate with plenary power to devise its internal rules as it sees fit, and the filibuster was just one of those procedural rules of the many rules that vest a minority within the Senate with the potential to have a final say over the Senate's business."

  • In 1917 it was decided that absolute unlimited debate should be curtailed, and there needs to be a two-thirds vote to cut off debate in order to bring legislation to the floor. But there was no change with regard to judicial nominees…. So much for the argument that the Constitution leans toward demanding a vote on nominations more than on legislation.

Biden also discussed a number of supporting precedents:

  • “President Adams had a number of judicial nominations blocked from getting to the floor”;

  • “A number of President Monroe's nominations never reached the floor by the end of his administration and were defeated by delay, in spite of his popularity and his party's control of the Senate”;

  • Because of a filibuster, in 1881 “Stanley Matthews' Supreme Court nomination failed without getting a vote”;

  • Because of a filibuster, President Johnson’s nomination of Abe Fortas “never got a vote, even though he was a sitting Supreme Court Justice about to be elevated to Chief Justice.”

Biden was not alone in endorsing Senator Byrd’s view of the Senate’s power to withhold its consent by doing nothing. Three weeks after Biden’s impassioned speech, Senator Harry Reid echoed the Byrd argument in a floor statement:

The duties of the Senate are set forth in the U.S. Constitution. Nowhere in that document 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 is very different than saying every nominee receives a vote.

The “Biden Rule,” or more accurately the Biden/Reid Rule, is really the Byrd Rule, and the only way to dismiss it is to agree with Senator Schumer’s recent statement: “It doesn’t matter what anybody said in the past.”

But if that’s true, why should anyone credit what he and they say now?