On Monday, C-SPAN posted a two-minute clip of then-Senator Joe Biden (D-DE) urging President George H.W. Bush not to nominate a Supreme Court Justice during the 1992 election, should a seat on the court become vacant. Biden, then the Chairman of the Senate Judiciary Committee, urged Bush “not name a nominee until after the November election is completed,” noting that if he did, “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
Conservatives quickly pounced on the clip and used it as evidence to argue that Congressional Republicans are following long-standing precedent in refusing to consider President Obama’s nomination to fill the seat of Justice Antonin Scalia until a new president takes the oath in January of 2017.
But Biden's full speech undermines their claim. Rather than urging his colleagues to deny Bush's potential nominee a hearing, Biden was bemoaning the politicization of the confirmation process -- hence his suggestion of not holding a hearing in the heat of a presidential election -- and what he saw as Bush's refusal to properly consult with the Senate in selecting a nominee. In fact, just 10 minutes after calling for temporary inaction on Bush's candidate, Biden actually promised to consider a moderate Supreme Court nominee.
"I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate," he said. "Therefore I stand by my position, Mr. President, if the President [George H.W. Bush] consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter." Watch it:
Biden made his remarks in the context of reforming the entire judicial confirmation process, which, he claimed, had been marred by Justice Clarence Thomas' contentious confirmation hearings.
As Chairman, Biden repeatedly confirmed Bush's judicial nominees during the 1992 election season. In the second session of the 102nd Congress, "the Senate confirmed more nominees, 11, to the courts of appeals that year than in any other presidential election year in United States history," holding hearings "on district court nominees every month from January to September; court of appeals nominees received hearings in every month from February to September."
Biden's office has released the following statement: "Nearly a quarter century ago, in June 1992, I gave a lengthy speech on the Senate floor about a hypothetical vacancy on the Supreme Court. Some critics say that one excerpt of my speech is evidence that I oppose filling a Supreme Court vacancy in an election year. This is not an accurate description of my views on the subject. Indeed, as I conclude in the same statement critics are pointing to today, urged the Senate and White House to work together to overcome partisan differences to ensure the Court functions as the Founding Fathers intended. That remains my position today."