“Biden Rule” Is A Straw Man Argument

The Difference Between Biden, GOP Regarding SCOTUS

The funny thing about politics is that if one party has done it, then another has as well. It makes for interesting cannon fodder when both parties want to express themselves and shake their fingers at the other.

ChattanoogaThe case of “well they did it too” is very prevalent in the US government. In most cases it doesn’t really hinder the government—all that much. However, when it comes to the Supreme Court it’s a bit of a different case. The Supreme Court’s role is to hear the cases on appeal from the lower court and interpret the Constitution for future cases. It’s a big responsibility for sure, which is why the recent nomination is under such scrutiny, especially under an election year.

However, the latest argument by the GOP about Vice President Joe Biden’s “Biden Rule” is essentially another argument that shouldn’t hold much water. The reason being is that it’s taken completely taken out of context–but why should the GOP let that stop them with a good narrative.

Let’s provide some context, Biden spoke right after the controversial Clarence Thomas nomination. The nomination ultimately passed with a 52-48 vote in favor of Thomas. But the process that it took to get the vote was a bit, let’s just say unpleasant. Also, when Biden was making his speech, it was a hypothetical in case a justice would step down during the 1992 election.

Here’s Biden’s speech:

“Given the unusual rancor that prevailed in the (Clarence) Thomas nomination, the need for some serious reevaluation of the nomination and confirmation process, and the overall level of bitterness that sadly infects our political system and this presidential campaign already, it is my view that the prospects for anything but conflagration with respect to a Supreme Court nomination this year are remote at best.”

“Mr. President, where the nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is a partisan bickering and political posturing from both parties and from both ends of Pennsylvania Avenue. As a result, it is my view that if a Supreme Court Justice resigns tomorrow, or within the next several weeks, or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not– and not– name a nominee until after the November election is completed.”

Senate Minority Leader Mitch McConnell speaks at the Faith & Freedom Coalition "Road to Majority" reception in WashingtonWell on the surface, it looks exactly what it is. Joe Biden did indeed say the president should not make a nominee. However, and this is the part that is different from the GOP’s argument, Biden said not to name a nomination before the election.

He didn’t say anything about the two months that a president would have if they had to leave office. It also would give the Senate two months to vote but ultimately the residing president would still have the decision. This is different than Senator Mitch McConnell (R-KY)’s theory that the “people should decide.” Biden may have said to wait until after the election, which the GOP isn’t even providing. They gave the caveat, at least some of them, that the nominee may get a hearing if it’s a “lame duck” season.

Also another thing that makes the GOP’s “Biden Rule” argument unnecessary is that Biden never once refused to meet with a nominee in his history of serving on the Senate Judiciary committee. He always made sure a hearing, a vote and confirmation, if necessary, took place. He didn’t do what the GOP is currently doing. Hard to use a “rule” to justify doing the exact opposite of what the person who “made” the rule is named after.

The last and important thing that the GOP and its pundits seem to have left out was the closing part of Biden’s speech. That’s right, because a political party would never try and cherry pick a quote in order to make their point. They are almost as bad as sports writers who cherry pick stats to prove how bad a baseball or hockey team is doing.

That’s what the GOP did when they presented the “Biden rule”. They didn’t include the ending part of Biden’s speech, which would put this whole thing in a new light and kind of sweep the rug from under the feet of the GOP.

“I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate,” Biden said during the speech. “Therefore I stand by my position, Mr. President, if the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter.”

That’s the last little bit of the speech that the GOP probably doesn’t want to get out. Obviously, it’s better to have the first part of the speech about how the president shouldn’t nominate someone during an election year. However, the GOP doesn’t even get that right as Biden said only until the election was over. Then to take what he said out of context kind of shows a level of desperation the GOP is at right now as a party.

Biden did say to hold off on nominations. He also said it as a hypothetical situation. Something the GOP doesn’t have the luxury of as the seat left by Antonin Scalia needs to be filled. Biden also said that if “the President consults and cooperates with the Senate or moderates his selections absent consultation” then he would give his support.

There has been an extensive record about how centrist Merrick Garland is compared to some of the others on President Obama’s shortlist. In fact, there’s even talk about how Obama should pull his nomination in favor of a more leftist nomination–at least that’s how the Democratic Party would like to see it. Garland isn’t that guy in the Democratic Party’s eyes they want someone else. Garland would seem to fit into the criteria of the so-called “Biden rule” which would mean the GOP should probably have a hearing on whether or not they are going to vote on Garland.

Which brings up this point, the GOP probably couldn’t ask for a better nominee and all of this posturing isn’t going to help them in the general primary. In fact, if Hillary Clinton or Bernie Sanders wins “the let the people decide” is going to blow up in the GOP’s faces.

Either way, the idea of Garland as a nomination is logically sound but politically volatile. It’s not like either party is particularly happy with it. To a cynical American public, that could signify that it’s probably the right decision.

“The president did not go out and find another Brennan. Merrick Garland, intellectually, is as capable as any justice, but he has a reputation for moderation. I think that’s a responsibility of the administration in a divided government,” Biden said in a speech at Georgetown. “Some of my liberal friends don’t agree with me, but I do.”

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Thomas Fernandez is the managing editor for Sports Talk Florida and News Talk Florida. He started his career in media by covering the NHL and the Tampa Bay Lightning. After covering the NHL for two years, he hopped on board the news cycle and has been covering both sports and news for the last year. He has covered major sporting events as well as politics which affects the Florida audience. Thomas is a Tampa native and graduate of the University of South Florida with a bachelor of arts in Public Relations.