an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Does the Biden speech undermine the case for Supreme Court confirmation hearings?
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.
By contrast, when Republicans today insist that the the current president should not get a nomination at all, they assert the exact opposite: that partisan politics should decide the fate of the Court. Thus the letter to the Senate Majority Leader signed by every Republican member of the Senate Judiciary Committee announcing that there will be no hearings “on any Supreme Court nominee until after our next President is sworn in."
Skeptics will surely respond that the two months between the election and the next president’s inauguration is a distinction without a difference. The Democrats, they will argue, would surely have blocked any effort at a lame-duck nomination after the Bush 41 lost the election to Bill Clinton. Perhaps. Certainly there would have been huge pressure to do so. The prospect of such pressure is why Democrats who are scrambling this week to explain Biden’s speech have not focused on the gap between November and January as a key distinction. No one today thinks that the Republican Senate could be persuaded to confirm a lame-duck Obama nominee in the two months before a Republican president took office.
Nonetheless, the important difference between the Biden speech in 1992 and the Republican position in 2016 offers powerful evidence for how the party of Nixon, Reagan, and Scalia has organized itself around the Supreme Court during the past half-century--and transformed the Court in the process.
Emily Bazelon and I get into the underlying phenomenon here.