Don Crawford

Don Crawford

President of Crawford Broadcasting and the voice of the STAND Podcast

The Biden Rule

The United States Senate, then Senator Joe Biden from the great State of Delaware once said should not hold hearings much less confirm a presidential nominee to the Supreme Court when in fact that President is:


That is, a President who was in the last year of his term without the possibility of running for reelection, America then in year or less under the aegis of a new President.

Let the new President, said Biden, newly elected nominate his or her choice for Supreme Court Justice and then, and only then let the United States Senate hold hearings and confirm or not.  Then and only then.

Of course, old Joe as some so affectionately (or not) call him forgot history.  He denied his words and the so-called Biden rule.  But they were his words, and certainly his thinking at the time for, after four years of George H.W. Bush as Republican President, there was every good possibility that Bill Clinton, then Governor of Arkansas would be elected President, a Democrat and a liberal.  Consequently, the choice for court would be totally different, liberal rather than conservative.  And that choice of Supreme Court Justice would move the court toward the left or toward the right, yet another political consideration in choosing and appointing when the Constitution requires that such a choice be objective and impartial.

Back to Biden spin. The now Vice President Biden said the following:

“You hear all of this talk about the Biden Rule.  It’s frankly ridiculous.  There is no Biden Rule.  It doesn’t exist.”

Well, Joe, actually it does.  Don’t hold a hearing, again, said Biden on a nominee made by a lame-duck President.  And the Republicans under Senate Majority Leader Republican Mitch McConnell of Kentucky have taken him at his word.  The Senate will not, says McConnell, hold hearings on the nomination by Barack Hussein Obama of Merrick Garland which will in effect nullify the nomination.  They will again follow Biden’s words who admonished George H.W. Bush that he should delay filling a Supreme Court vacancy until the Presidential election was over.  Why when words are so clear do politicians, old, seasoned politicians like Joe Biden deny them.  And more spin and denial from Mr. Biden:

“I was speaking in 1992 of the dangers of nominating an extreme candidate without proper Senate consultation.  I made it absolutely clear that I would go forward with the confirmation process as chairman, even a few months before the presidential election.”

Well, Joe, actually you didn’t.  The damage control statement just didn’t work.  For what you really said was wait until the political campaign season is over and the elections occur and that appears to be the way things will happen in Washington.  Biden’s denials led Adam Brandon, CEO of the conservative activist group FreedomWorks to call Joe Biden’s speech:

“A pretty miserable attempt at damage control and the height of hypocrisy.”

And that it is.  Yet another lie coming from Washington.  But are we not used to political lies, my fellow Americans?  As the Good Book says about politicians:


It had to be referring to politicians, don’t you think?

Republican National Committee Chairman Reince Priebus said that Mr. Biden’s remarks “can’t be taken seriously.”  And indeed they can’t.

And in fact, even the Democrat Senate leadership generally supports the Republicans current position in one way or another.  The Biden Rule, bipartisan in nature and support, seems to have been honored for decades and that precedent should be continued.

Biden went onto say that leaving the Supreme Court split four liberal and four conservative without a ninth and deciding justice would create a “patchwork Constitution.”  Biden said the court will be unable to resolve conflicting rulings among appellate courts on basic freedoms such as the right to be free from unreasonable searches or the right to free speech.  That may be true, but it also indicates how clearly how political, how partisan the Supreme Court has become.  It has veered from the path of pure objectivity and gigantic Constitutional issues are decided by four liberals, moving America to the left, or four conservatives moving America to the right IF the issue at hand can sway one liberal justice to the conservative side or one conservative to the liberal.

That does mean indeed that some laws will be Constitutional in some parts of the country and unconstitutional in others.  While that is indeed a disadvantage, at least to some extent, that is in essence federalism in operation, a return of control and decision making to localities, states and even regions of our country rather than the dogmatic positioning of five justices for the entire country.

But back to 1992 where Biden said that a divided court “is quite minor compared to the costs that a nominee, the President, the Senate and the nation would have to pay for what would assuredly be a bitter fight.”  Conveniently, it seems as though Mr. Biden has forgotten those remarks.

And still more from Biden 1992.  He said:

“Some will criticize such a decision (not hold hearings) and say that it was nothing more than an attempt to save a seat on the court in hopes that a Democrat would be permitted to fill it.  Instead, it would be our pragmatic conclusion that once the political season is underway-and it is-action on a Supreme Court nomination must be put off until after the election campaign is over.  That is what is fair to the nominee and essential to the process.”

Well, there you have it, Joe.  Black and white, clear as a bell.  Those are words so firm and sure that they would surely withstand the attempt at spin, even denial you would make.  NO NOMINATION and if there is one:


So in the interim, the nomination of Judge Merrick Garland sits in limbo perhaps waiting for Garland himself to withdraw his name and the good judge, whatever his credentials will now sit out all cases before the U.S. Court of Appeals for the DC Circuit while his nomination is pending, his choice.  Sounds like he may well be about the process of withdrawing, don’t you think?  That means that Judge Garland will not participate in 15 cases that he had heard before he was nominated on March 16, 2016.

It is just incredible, my fellow Americans how politicians lie.  They deny what they said with impunity.  They claim to have been misunderstood.  Or misrepresented.  Or that the facts need clarifying (Reid sanitizing) when in fact, all of those facts, those words only need clear statements with clear intentions and no more.  Hard to remember the last time that happened in Washington.

Liberals of course want the Senate to hold hearings on Merrick Garland for he is liberal and consequently the court structure would consist of five liberal justices and four conservative following the death of one of the greatest jurists of all times, Antonin Scalia.  Conservatives and of course Republicans want no such hearings and wait with the hope that a Republican or a conservative will be elected in November and a totally different nominee, at least more conservative, will be nominated to the court when hearings will be held.  POLITICS NOT JUSTICE AT WORK!

The Biden Rule is a good rule.  Holding hearings would be disruptive, hard fought and highly political.  It is best, it seems to me for America that if elected, a liberal President like Hillary Clinton should have the right to nominate and a conservative President if elected should also have that right.  And then, let the Senate dig-in, vet, evaluate and hopefully do what is right not only for the Supreme Court but much more importantly WE THE PEOPLE.
What do you think?  The nomination of the next Supreme Court Justice may well be just as important in so many ways as the election of the next President of the United States.

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