The White House is hilariously trying to downplay a speech made by Vice President Joe Biden in June 1992 when he served as the chairman of the Senate Judiciary Committee. Biden urged then-President George H.W. Bush not to name a Supreme Court nominee in an election year.
Of course, Biden didn’t simply say that Bush shouldn’t name a nominee. He said “the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over.”
Like Barack Obama, who now conveniently says he “regrets” participating in the failed 2006 filibuster of Samuel Alito, Biden is trying to spin his comments as no big deal. He protested the coverage of his remarks by saying that he “ensured the prompt and fair consideration of nine Supreme Court Justices and the current Senate has a constitutional duty to do the same.”
“I presided over the process that resulted in Justice Kennedy, a Reagan nominee, being confirmed to the Supreme Court in a presidential election year,” he added. “I allowed the nominations of Judge Bork and Justice Thomas to proceed to the floor, even though they didn't have the support of the committee.”
Biden’s more recent comments don’t paint the full picture of his role in the Reagan- and Bush-era confirmation battles. After Justice Lewis Powell retired, Reagan, in July 1987, nominated Robert Bork, who was, just five years earlier confirmed by the Senate to the U.S. Court of Appeals for the District of Columbia by a voice vote.
Bork, an originalist, was excoriated by the likes of Biden and Ted Kennedy. Of course, Biden made his intention clear at the time. “The framers clearly intended the Senate to serve as a check on the president and guarantee the independence of the judiciary,” Biden said in August 1987. “The Senate has an undisputed right to consider judicial philosophy.” A few months later, in November, 58 senators, including a handful of liberal Republicans, voted against Bork’s nomination.
Reagan went back to the drawing board and, in October 1987, nominated Douglas Ginsburg, who, like Bork, served on the U.S. Court of Appeals for the District of Columbia. Just days after he was nominated, Ginsburg withdrew after his past marijuana use became public knowledge.
After Bork and Ginsburg, Reagan, in November 1987, nominated Anthony Kennedy. The Senate Judiciary Committee held confirmation hearings the following month and, in February 1988, Kennedy, who has no discernable political ideology, was unanimously confirmed to the Supreme Court, where he sits today.
Biden’s thirst for the blood of conservative Supreme Court nominees didn’t end with Bork. A little less than a year before his comments from the Senate floor, Biden oversaw the confirmation of Clarence Thomas, who was nominated by Bush in 1991 after the retirement of Justice Thurgood Marshall.
There was, of course, the criticism of Thomas’ originalist interpretation of the Constitution. In fact, Biden waved a copy of Richard Epstein’s book, Takings: Private Property and the Power of Eminent Domain, and declared that anyone who agreed with the author wasn’t fit to serve on the Supreme Court.
But that doesn’t even scratch the surface of what Thomas went through during his confirmation, when his personal integrity was questioned and became fodder for Democrats and talking heads in the media. Though he was eventually confirmed in a close vote, Thomas called the confirmation process “a high-tech lynching.”
Today is no different than June 1992, when Biden urged Bush not to name a nominee and suggested that the Senate would stall hearings and the confirmation process until after the election. It may be early, but the nation is in an election year, votes have already been cast in a few states, and President Obama is a lame duck.
As Biden correctly observed, judicial philosophy matters, and any nominee should have the same originalist views and fidelity to the Constitution that Justice Antonin Scalia displayed in his 30 years of brilliant, and often colorful, opinions and dissents.
Adam Brandon is the president and CEO of FreedomWorks. Follow him on Twitter at @adam_brandon.