Saturday, February 27, 2016

Does the Biden speech undermine the case for Supreme Court confirmation hearings? - John Witt - Balkinization:

Balkinization: Does the Biden speech undermine the case for Supreme Court confirmation hearings?
by John Witt // Yale Law School
What’s the difference between resisting a Supreme Court nomination during a presidential campaign and resisting one until the next president is in office? The answer is two and a half months -- and a radically transformed conception of the Court.

As readers of this blog will likely know by now, then-Senator Joseph Biden delivered a speech on the Senate floor in June of 1992 warning that in the event of a Supreme Court vacancy, President George H. W. Bush ought not “name a nominee until after the November election is completed.” Biden urged that the Senate consider “not scheduling confirmation hearings on the nomination until after the political campaign season is over.”

Flash forward to 2016. Republicans in the Senate and elsewhere cite the Biden speech in support of their refusal to consider a nomination to fill the seat left vacant by the death of Justice Scalia. The country’s newspapers and commentators have gone along. The New York Times called Biden’s speech “a direct contradiction to President Obama’s position.”

The Times is flat wrong. The Biden speech is no contradiction, but not for the reasons the White House and its allies have asserted. In 1992, Biden’s argument was that action “must be put off until after the election campaign is over.” In our system of government, the end of campaign season does not coincide with the inauguration of the new president. 

 To the contrary, since the enactment of the Twentieth Amendment, the election gives way to a period of two and a half months in which the incumbent president, though to be sure a lame duck, holds all the formal powers of the office, including the power to nominate new justices. Biden’s move was to insist that, until the post-election period, there would be too much partisan rancor to have a full and fair hearing on the merits. After all, that was what mattered: ensuring an evaluation of the next justice on the merits, not according to a partisan political calculus.

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