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Biden: ‘Constitutional Crisis’ Coming With Split Supreme Court

Vice President defends his 1992 comments similar to Republican argument today against nomination

Vice President Biden speaks about the Supreme Court vacancy and confirmation process at the Georgetown University Law Center in Washington on Thursday. (Photo by SAUL LOEB/AFP/Getty Images)
Vice President Biden speaks about the Supreme Court vacancy and confirmation process at the Georgetown University Law Center in Washington on Thursday. (Photo by SAUL LOEB/AFP/Getty Images)

The White House opened a new front in its push to get Supreme Court nominee Merrick Garland confirmed, with Vice President Joseph R. Biden Jr. arguing that the Senate Republicans’s decision to leave a vacancy on the court has pushed the country to the brink of a “constitutional crisis.”  

The Obama administration’s messaging before Biden spoke Thursday at Georgetown Law Center in Washington mostly had focused on its interpretation of the Constitution’s orders for presidents and lawmakers, as well as Garland’s legal resume and personal story .  

“What Republican senators say they would do could lead to a genuine Constitutional crisis born out of the dysfunction of Washington,” Biden said, referring to a repeated vow by Senate Majority Leader Mitch McConnell of Kentucky and others that Garland will get neither a confirmation hearing nor a vote while President Barack Obama is in office. Biden,  a former chairman of the Senate Judiciary Committee who oversaw eight high court confirmation processes, quickly dismissed the flap over his 1992 advice against advancing a Supreme Court nominee in an election year. He said he was cautioning then-President George H.W. Bush not to send up an extreme nominee without “proper Senate consultation.”  

Instead, Biden issued a full-throated warning that leaving in place a court that likely would issue 4-4 decisions, splitting along ideological grounds, would amount to a “patchwork Constitution.”  

A number of cases the court is set to consider feature disputing decisions on the same issue from lower courts. Leaving those cases until a new president takes office and shepherds a nominee through the confirmation process essentially leaves federal law unsettled for as long as a year.
“Federal laws — laws that apply to the whole country — will be constitutional in some parts of the country but unconstitutional in others,” Biden said of such a scenario.  

“The meaning and extent of your federal constitutional rights — from your freedom of speech, to your freedom to follow the teachings of your religious faith, to your right to be free from unreasonable search and seizure — all could depend on where you happen to live,” he added.  

The vice president argued that a “fully functioning” high court with its full array of nine jurists is needed because “geographic happenstance cannot fragment our national unity.”  

“Alexander Hamilton had the foresight to warn that such fragmented judicial power would create ‘a hydra in government, from which nothing but contradiction and confusion can proceed,’” Biden said.  

“Even worse, a patchwork Constitution will deepen the gulf between the haves and have-nots,” he added. “Under a system of laws ‘national’ in name only, the rich and powerful will manipulate geographical differences and game the system.”  

An eight-judge high court, Biden argued, would leave it unable to perform its  constitutionally dictated role.  

Kermit Roosevelt, a professor of constitutional law at the University of Pennsylvania and a former Supreme Court clerk, said Biden is correct to warn against “having a federal law mean different things in different parts of the country.”  

“I think he’s right that that would be a bad outcome,” Roosevelt said. “States having the right to make certain laws that differ from one another is a virtue of our federalism. But federal laws made by the national government are supposed to mean the same thing everywhere.”  

But Biden’s rhetoric of a watered-down Constitution, “may be overstating it a bit,” Roosevelt said.  

“The Supreme Court usually doesn’t take cases the moment disunity at the lower-court level arises,” he said. “There were times as a clerk when we would … look at those kinds of cases and say, ‘This split is rather shallow. Let’s let this percolate for a while and see if the lower courts change their minds’.  

“It is not uncommon for the court to decide to allow federal laws to be implemented differently for a little while,” Roosevelt said.  

Hanging over Biden’s remarks and the efforts to win Garland’s confirmation, are comments that then-Judiciary Chairman Biden made in the Senate chamber in June 1992 .  

Then, there was talk that Republican President George H.W. Bush would get the chance to nominate a high court jurist during the final year of his first (and only) term — and during a competitive general election race with an upstart Democratic governor from Arkansas, Bill Clinton.  

“It is my view that if the president … presses an election-year nomination, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings on the nomination until after the political campaign season is over,” Biden said nearly 24 years ago.  

Biden sought to clarify those remarks, saying he was advising against pushing an “extreme” nominee like Clarence Thomas, who had been confirmed a year earlier despite considerable Democratic opposition.  

He contended Bush rushed the nomination of Thomas without following the Constitution’s orders that the Senate provide advice on and then consent to a high court nominee. Biden also said Senate Republicans are “selectively” quoting those remarks, leaving out his promises to support a moderate nominee — adding later that Garland is just that kind of jurist.  

“There is no Biden rule,” he said, using Republicans’ recently minted moniker for their interpretation of his 1992 floor remarks.  

But current Judiciary Chairman Charles E. Grassley, R-Iowa, shot back in a statement that “no matter how hard the White House tries to rewrite history, it can’t change then-Chairmen Biden’s remarks explaining how the president and Senate should handle a Supreme Court nomination arising during a heated presidential campaign.”  

“As [then-] Chairman Biden explained, the hyper-political environment is bad for the nominee, the court, and ultimately the nation,” Grassley said.  

On Thursday, the vice president and former senator called Republicans, including McConnell, “my friends.” But he criticized them for the era of dysfunction that has left the last several Congresses so unproductive.  

“We cannot afford to have that spread to another branch of government,” he said. “It’s not secret Congress is broken. … It has got to stop.”  

He also noted that “no one,” including Senate Republicans, has questioned Garland’s qualifications or integrity, saying Garland has a track record of “moderation” as a federal judge.  

“No one has found any substantive” reasons to deny the sitting chief judge of the United States Court of Appeals for the District of Columbia Circuit a confirmation hearing,” Biden said, adding that Garland “deserves a hearing as a simple matter of fairness.”  

Contact Bennett at Follow Twitter @BennettJohnT.

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