The “Biden Rule” Was First The Byrd Rule
Now that President Obama has nominated Judge Merrick Garland to the Supreme Court, we are hearing even more accusations from Democrats that Republicans are shirking their constitutional duty to consider the president’s nominee. In its web page on the Garland nomination, the White House asserted:
[Obama] looks forward to the Senate doing its job of holding a hearing and allowing members to vote on the nominee. That’s what is written in the Constitution …
Similarly, Hillary Clinton issued a statement asserting that the Senate has a “serious obligation” to consider the nominee because the Constitution does not “make an exception to that duty in an election year.”
The Democrats should take a breath and ponder the words of one of their own, who was widely regarded as “the conscience of the Senate” and its most knowledgeable historian — the late Senator Robert Byrd.
In a speech on the Constitution’s “advise and consent” provisions to the Center for American Progress on April 25, 2005, Senator Byrd declared:
There is no stipulation in the Constitution as to how the Senate is to express its advice or give its consent. President Bush incorrectly — incorrectly — maintains that each nominee for a federal judgeship is entitled to an up or down vote. The Constitution does not say that. I say the Constitution itself does not say that each nominee is entitled to an up or down vote. The Constitution doesn’t say that, it doesn’t even say that there has to be a vote with respect to the giving of its consent. The Senate can refuse to confirm a nominee simply by saying nothing and doing nothing.
Senator Byrd was introduced, and his remarks lavishly praised, by the president and CEO of the Center for American Progress, John Podesta.
Podesta is now Hillary Clinton’s campaign chairman.
Two days later, Byrd’s speech was also heavily quoted, lavishly praised, and included in full in the printed version of a prolix (13,000+ word), 90-minute floor speech by Senator Joe Biden.
Biden’s entire speech was devoted to the issue at the center of the debate over the Garland nomination. Since he attached so much significance to it, he prepared by seeking the counsel of a panel of Constitutional scholars. Biden declared it was “one of the most important” speeches of his 32-year Senate career. Since Biden’s contradictions have been so hotly debated during the current nomination controversy, it is odd that this speech has been virtually ignored in favor of another prolix speech (about 20,000 words) the Delaware senator delivered in June 1992.
That speech, in which Senator Biden urged “not scheduling confirmation hearings on the nomination” of any Supreme Court justice “until after the political campaign season is over,” has generated a firestorm of recent controversy. Both Senate Majority Leader McConnell and Judiciary Committee Chairman Grassley have cited this “Biden Rule” to justify the Senate’s refusal to consider Garland’s nomination, thus confirming articles by the New York Times (“24 Years Later, Joe Biden’s Words Haunt Democrats”) and USA Today (“Biden’s Court Comments May Haunt Him 2 Decades Later“).
Vice President Biden has retorted that Republicans have taken his 1992 comments out of context, misread his “purpose,” and distorted “the broader meaning” of his speech.
All the more reason, then, to take a close look at Biden’s more recent April 2005 speech which culminated in his full-throated endorsement of Senator Byrd’s argument that “the Senate can refuse to confirm a nominee simply by saying nothing and doing nothing.”
Whatever the “broader meaning” of Senator Biden’s 2005 speech, its clearly stated and unambiguous purpose was to defend the ability of even a minority of senators to prevent the Senate from considering a Supreme Court nominee.
A majority of senators can withhold their consent by voting against a nominee or simply refusing to vote, but, as Biden insisted, the only avenue open to a minority was the filibuster, and his speech was an impassioned demand that the filibuster option be left open.
Biden has reversed his position on unrestricted Senate debate a number of times over the years. He was for it before he was against it before he was for it before he was against it. But his important 2005 speech was an unqualified defense of the principle that a minority of senators have — and should have — the right to prevent the Senate from even considering a Supreme Court nominee.
- “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?
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