Let me tell you a tale of the incompetence of Vice President Joe Biden. Trust me, this one is even better than usual.
Once upon a time, back in the days when Joe Biden was a bad Senator instead of a bad Vice President, he had a staffer named Victoria Nourse. Ms. Nourse’s major claim to fame was ‘helping’ to write the (later deemed partially-unconstitutional) Violence Against Women Act (VAWA) that was one of Senator Biden’s signature pieces of legislation; ‘helped’ is in square quotes because originally Biden took full credit for the law – like Biden typically does – until he got caught at it in 2007. This was, of course, perhaps a little awkward… but then events transpired in 2008 that Senator Biden became Vice President Biden, which meant that Ms. Nourse could be given a nice consolation prize of a federal judgeship.
We have seen how proponents of theories of judicial restraint have, when it counted, done precisely the opposite: deciding a presidential election and finding new rights, such as the right to bear arms, thereby providing support for attitudinalists’ claims.
Hold on, let me translate that part: Ms. Nourse thinks that the 2000 election was stolen from Al Gore and that DC v. Heller wrongly found an individual right to bear arms in the Constitution. The second is merely muddleheaded thinking on her part; the first is, of course, crazy-talk… assuming that the title of her article (“VARIETIES OF NEW LEGAL REALISM: CAN A NEW WORLD ORDER PROMPT A NEW LEGAL THEORY?”) hadn’t already given that away. Still, if we kept all the 2000 stolen election conspiracy theorists on the Left out of consideration for judicial nominations then the Democrats would probably complain bitterly. More bitterly. Besides, in 2010 they controlled Congress, right? – Oddly enough, however, that self-same Democratic-controlled Senate never moved forward on Ms. Nourse’s nomination after July 2010 (although Judiciary worked on other nominations after hers), for reasons that are sort of obscure; at a guess, it was a combination of indifference, incompetence, and the aforementioned lack of Nourse’s even being on the Wisconsin bar (she finally joined in December 2010). Ms. Nourse’s nomination was thus duly sent back, and President Obama thus duly resubmitted her name for consideration in 2011.
And that’s where it all broke down. You see, in 2011 the junior Senator from Wisconsin abruptly stopped being Russ Feingold (D) and started being Ron Johnson (R); and Senator Johnson has access to what’s known as a ‘blue-slip privilege’ when it comes to in-state judiciary nominations. Simply put, by withholding his formal opinion (which is traditionally represented by a blue piece of paper: hence, ‘the blue slip’) the Senator has veto power over Nourse’s nomination; if he doesn’t want it to go forward, it won’t. Senator Johnson doesn’t want the nomination to go forward – not least because he was not given the the elementary and routine courtesy of being consulted on the nomination. So the nomination will not go forward; the blue-slip privilege is admittedly a custom, not a formal rule… but it’s a rule that the rest of the Senate will not overturn without a very good reason, and Victoria Nourse simply does not have that kind of pull.
Now this is where the incompetence of Joe Biden came in. We’ll skip over, lightly, the original law and Biden’s ham-handed attempts to take credit for it; that’s just garden-variety incompetence. But if the Vice President was offering this plum as a consolation prize to his staffer then it really should have behooved Joe Biden to make sure that the nomination went through. There was no excuse not to do it last year (contra Democratic agitprop, Judiciary did work on nominations before the midterms); and once the new realities of power in Wisconsin had become clear then the Vice President really should have handled the situation better. It is not wise to casually make enemies of sitting Senators… particularly sitting Senators who will be in office for at least as long as the rest of your national career*. And it’s especially not wise to do it on behalf of a candidate who can say things like ‘Self-Transcending Constitution‘ without immediately exploding in a shower of of pure irony.
But then, that’s Joe Biden for you.
Moe Lane (crosspost)
*We will now dispense with the polite fiction that Joe Biden will ever be elected President of the United States of America.