Five Reasons to Reject the "Biden Rule” Argument Against Merrick Garland

Five Reasons to Reject the "Biden Rule” Argument Against Merrick Garland

Created: 18 March, 2016
Last update: 17 October, 2022
From the way that Mitch McConnell and other Republicans have been talking this week, one might suspect that “the Biden Rule” is an actual thing—that it existed as a term or a concept before last Wednesday. It didn’t.

The term “Biden Rule” did not exist a week ago. It has never been a thing. It was coined specifically for the press conference in which McConnell announced that the Senate would not consider President Obama’s nominee to the Supreme Court during their current term. "The Senate will continue to observe the Biden Rule," he announced, "so that the American people have a voice in this momentous decision." –Senator Mitch McConnell

The basis for this brand new 24-year-old “rule” is this June 25, 1992 speech by Senator Joe Biden, then Chair of the Senate Judicial Committee, about a hypothetical opening on the Supreme Court in late June or early July, right before the political conventions:

Should a justice resign this summer and the president move to name a successor, actions that will occur just days before the Democratic Presidential Convention and weeks before the Republican Convention meets, a process that is already in doubt in the minds of many will become distrusted by all. Senate consideration of a nominee under these circumstances is not fair to the president, to the nominee, or to the Senate itself.

Mr. President, where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is a partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue. As a result, it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not — and not — name a nominee until after the November election is completed."

There are a lot of reasons not to treat this speech as a rule or a precedent—or as an argument not to consider the nomination of Merrick Garland to the Supreme Court. Here are five of them:

It was never a rule: The statement in question was not made at a time when there was a vacancy on the Supreme Court. No nomination had been made. Nobody was determining whether or not to hold hearings. Biden, then Chair of the Senate Judiciary Committee was speaking hypothetically about what might occur if a Supreme Court vacancy opened up in late June or early July—at the beginning of the summer convention season. He did not issue this as a rule or a precedent; he simply said that the President should seriously consider holding off until the end of the election season, and that, if he did not, the Senate should “seriously consider” waiting until November to hold hearings.

It was never adopted or put into practice: Senator Biden’s argument was never used to delay a nomination. It was never used as a precedent. Biden himself presided over the nomination hearings of Justice Anthony Kennedy, a Reagan appointment to the Supreme Court, who was confirmed by the Senate in February of 1988—Reagan’s final year in office.

Biden didn’t say what McConnell said he said: McConnell claims that “the Biden Rule” should be invoked to allow the next president to choose the Supreme Court nominee. This is NOT what Biden said. He argued that both the President and the Senate should, in the case of a hypothetical opening, consider putting the nomination process on hold until November, when the election was over. He very specifically did not deny the right of President Bush to appoint a Supreme Court nominee during his final year or the responsibility of the Senate to consider that appointment.

Even if Biden had said what McConnell said he said, he would have been wrong: Joe Biden has said a lot of things in his 40 years or so in public office, and the Republicans have disagreed with most of it. The attempt to use something he never said to create a rule that was not a rule suggests that Senate Republicans actually believe that Biden’s 25 year old opinions should be considered binding, when, in fact, they believe no such thing.

“They did it first” is a horrible governing philosophy: Almost every argument that McConnell and the Republican Party have advanced to justify not acting on a presidential nomination boils down to some version of “they started it.” In defending the actions, commenters have made points like, “Obama ignored the Constitution with his immigration order,” “Democrats attacked Robert Bork,” or “Harry Reid changed the filibuster rule.” These are all debatable propositions, but there is absolutely no point in debating them, because they are not relevant to the question. The other side’s bad behavior does not provide a framework for governing. Arguing that somebody else ignored the Constitution does not give you license to ignore it too.

Young children often believe that other people’s bad behavior gives them the right to behave badly too. Grown-ups know that this is not the case. America needs grown-ups.

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About the Author

Michael Austin

I am a professor-turned-administrator-turned part-time political pundit. I recently completed my sixth book, "That’s Not What They Meant! Reclaiming the Founding Fathers from the American Right," now available from Prometheus Books, and I am now working on my next book, "Arguing As Friends: Why It's Important and Why It's Hard." To stay updated, subscribe to my RSS feed -