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- February 23, 2016

History Exposes Vice President Biden As The Standard-Bearer For Holding Up Election-Year Judicial Confirmations


TOP TAKEAWAYS

  • Today, White House Press Secretary Josh Earnest said the President would like the Senate to do "precisely" what Vice President Biden did with judicial nominations while he served in the Senate as Chairman of the Senate Judiciary Committee.
  • While serving as Chairman of the Senate Judiciary Committee, Biden set the modern day precedent for judicial nominations during an election year, calling for an "election-year blockade" to any new Supreme Court nominations in order to "preserve the vacancies for Gov. Bill Clinton."
  • During his chairmanship, Biden created a culture of delay and obstructionism, more than tripling the average number of days judicial confirmation proceedings took and generating "unprecedented" backlogs.
  • Biden went as far to as to politicize eventual Supreme Court Justice John Robert's nomination to the D.C. Court of Appeals, despite Roberts being nominated in January of a presidential. election year.

TODAY, THE WHITE HOUSE SAID IT WANTS SENATE REPUBLICANS TO FOLLOW BIDEN RULES

Today, White House Press Secretary Josh Earnest Said The Obama Administration Would Like The Senate To Do "Precisely" What Biden Did With Judicial Nominations While He Served In The Senate. JOSH EARNEST: "So, you know, I know there's often this old adage that sometimes politicians are reduced to the expression that people should do as I say, not as I did. In this instance, we actually want the Republicans in the Senate to do precisely as Vice President Biden did when he served in the Senate." ( White House Press Briefing, 2/23/16)

Click To Watch

DURING THE 1992 ELECTION CYCLE, BIDEN CALLED FOR AN "ELECTION-YEAR BLOCKADE" TO SUPREME COURT NOMINATIONS IN ORDER TO "PRESERVE THE VACANCIES FOR GOV. BILL CLINTON"

During An Election Year In 1992, Then-Senator Joe Biden (D-DE) Gave A Speech On A Supreme Court Vacancy And Stated That The Current "President Should Not Name A Nominee Until After The November Election." THEN-SEN. JOE BIDEN (D-DE): "Mr. President, where the Nation should be treated to a consideration of constitutional philosophy, all it will get in such circumstances is 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." (Senator Joe Biden, Remarks On Senate Floor, 6/25/92)

  • The Washington Post Headline: "In 1992, Joe Biden Called For An Election-Year Blockade Of Supreme Court Nominations." (Mike DeBonis, "In 1992, Joe Biden Called For An Election-Year Blockade Of Supreme Court Nominations," The Washington Post , 2/22/16)
  • Politico Headline: "Biden In '92: No Election-Season SCOTUS Nominee Until After Election." (Sarah Wheaton, "Biden In '92: No Election-Season Supreme Court Nominees," Politico, 2/22/16)

Biden Downplayed Any Problems Associated With Having Only Eight Justices On The Court, Calling The Issue "Quite Minor." THEN-SEN. JOE BIDEN (D-DE): "Others may fret that this approach would leave the Court with only eight members for some time, but as I see it, Mr. President, the cost of such a result, the need to reargue three or four cases that will divide the Justices four to four are quite minor compared to the cost that a nominee, the President, the Senate, and the Nation would have to pay for what would assuredly be a bitter fight, no matter how good a person is nominated by the President, if that nomination were to take place in the next several weeks." (Senator Joe Biden, Remarks On Senate Floor, 6/25/92)

Click To Watch

Biden's Obstructionism Was In Order To Stall Any Nominations Until Bill Clinton Reached The White House

Biden's Obstructionist Efforts Intensified During The 1992 Election In Order To "Preserve The Vacancies For Gov. Bill Clinton To Fill If He [Were] Elected President." "In the latest battle in the war for ideological control of the Federal courts, the Democrats who control the Senate have begun to delay confirming some of President Bush's nominees for major judgeships to preserve the vacancies for Gov. Bill Clinton to fill if he is elected President. The action is the outcome of a sharp behind-the-scenes debate in which many Democrats have argued that the Senate should go further and stop approving any of Mr. Bush's judicial nominations in the waning months of an election year." (Neil A. Lewis, "Waiting For Clinton, Democrats Hold Up Court Confirmations," The New York Times, 9/1/92)

  • 1992 The New York Times Headline: "Waiting For Clinton, Democrats Hold Up Court Confirmations." (Neil A. Lewis, "Waiting For Clinton, Democrats Hold Up Court Confirmations," The New York Times, 9/1/92)

At The Time, Biden Acknowledged The Objection "That He Was Trying To Stall The Nomination In Case A Democrat Won The White House." "But in 1992, Biden said that everyone involved in the nomination process would create a toxic environment. Rather than a debate about constitutional principles, Biden warned, an election-year confirmation hearing would be 'partisan bickering from both parties and from both ends of Pennsylvania Avenue.' At the time, Biden acknowledged the possible objection that he was just trying to stall the nomination in case a Democrat won the White House." (Sarah Wheaton, "Biden In '92: No Election-Season Supreme Court Nominees," Politico, 2/22/16)

THE BIDEN RULES OF OBSTRUCTION AND POLITICIZING JUDICIAL NOMINATIONS BEGAN DURING THE 100TH CONGRESS, WHEN HE SLOWED DOWN JUDICIAL NOMINATIONS TO A "SNAIL'S PACE"

As A Senator, Biden Served On The Senate Judiciary Committee For 17 Years, Serving As Chairman Of The Committee From 1987 Through 1995. "As Chairman or Ranking Member of the Senate Judiciary Committee for 17 years, then-Senator Biden was widely recognized for his work on criminal justice issues, including the landmark 1994 Crime Law and the Violence Against Women Act." ("Vice President Joe Biden," The White House, Accessed 2/23/16)

In February 1988 The National Journal Reported On The "Acrimony" Over The "Snail's Pace" Biden's Judiciary Committee Was Taking In Confirming Judicial Nominees. "The praise lavished upon Anthony M. Kennedy by Senators of both parties and their unanimous vote to confirm him to be an Associate Justice of the Supreme Court earlier this month belies the acrimony that continues to be felt in the body over its appropriate role in confirming judges. At the center of the controversy is the Judiciary Committee, headed by Sen. Joseph R. Biden Jr., D-Del. … Although Biden has pulled out of the presidential campaign, the review process continues and critics recently have focused on what they view as the snail's pace at which the committee is voting on President Reagan's nominees." (Kirk Victor, "A Committee With A Stormy '88 Docket," National Journal, 2/13/88)

The Slow Pace Was Attributed To An "Ad Hock Task Force On Judicial Nominations" Created By Biden And Headed By Sen. Leahy (D-VT). "When Kennedy opted to be chairman of Labor and Human Resources instead, Biden took the reins of Judiciary and decided to establish an 'ad hoc task force on judicial nominations,' headed by Patrick J. Leahy, D-Vt. The Leahy unit's mission is to investigate nominees to the federal bench more thoroughly than had been done in the past. … Although Biden has pulled out of the presidential campaign, the review process continues and critics recently have focused on what they view as the snail's pace at which the committee is voting on President Reagan's nominees." (Kirk Victor, "A Committee With A Stormy '88 Docket," National Journal, 2/13/88)

Leahy Defended The Slow Pace, Saying Just Because A Nominee "Is Not Wanted For Sheep-Stealing, He Should Not Automatically Go Through." "Leahy also dismissed the criticisms in an interview. 'Just because a President nominates somebody and the FBI says he is not wanted for sheep-stealing, he should not automatically go through,' he said. 'Otherwise, why not just amend the Constitution and take out the advise and consent [clause]?'" (Kirk Victor, "A Committee With A Stormy '88 Docket," National Journal, 2/13/88)

  • Biden "Called The Delays Necessary" And Said "Democrats Refused To Rubber Stamp Reagan Nominees" Like Republicans Did From 1981 To 1986. "Committee Chairman Joseph R. Biden Jr., D-Del., called the delays necessary, arguing that Democrats refused to rubber stamp Reagan nominees as he contended Republicans did when they controlled the panel from 1981-86." (Larry Margasak, "Reagan Leaves Mark On U.S. Judiciary With Conservative Appointments," The Associated Press, 10/24/88)

At The Time, Biden's Reluctance To Confirm Judicial Nominations Created An "Unprecedented Election-Year Backlog"

Sen. Humphrey (R-NH) Noted That The Most Pending Nominations To The Federal Bench Prior To An Election Year Was 4, Compared To The 27 Nominations Pending From 1987. "But in one of the sharpest challenges to Biden's performance to date, committee member Gordon J. Humphrey, R-N.H., noted recently that in the six instances dating back to 1963 when a presidential election was to be held the next year, the greatest number of pending nominations to the federal bench had been 4, a 'huge discrepancy' from the 27 nominees that were pending in 1987." (Kirk Victor, "A Committee With A Stormy '88 Docket," National Journal, 2/13/88)

  • The Washington Post : "Justice Department Officials And Some Committee Republicans Decry The Nominations Pileup As An Unprecedented Election-Year Backlog…" "Justice Department officials and some committee Republicans decry the nominations pileup as an unprecedented election-year backlog, noting that there was only one unconfirmed nominee at the end of 1983, two in 1979, and none in 1975 and 1971." (Ruth Marcus, "A Crowded Docket Of Judicial Nominees," The Washington Post, 1/25/88)

BIDEN'S HINDRANCE TO THE JUDICIAL NOMINATION PROCESS CONTINUED THROUGH THE 1990s, CEMENTING THE BIDEN RULES

In 1992, It Was Reported That 50 Judicial Nominees Would Not Be Confirmed In The Senate, Leading Republicans To "Charge Biden With Intentionally Delaying The Process." "Men and women named by President Bush to 50 vacant judgeships will not be confirmed by the Senate this year, leaving Republicans and Democrats pointing fingers of blame at each other. … With Congress expected to adjourn for the year late next week and Democratic Presidential candidate Bill Clinton ahead in the polls, many Republicans fear the nominees will never be approved and charge Biden with intentionally delaying the process." (Holly Yeager, "Senate Will Not Act On 50 Bush Judicial Nominations," States News Service, 9/25/92)

Republican Ranking Member Strom Thurmond Said He Asked Biden To Increase The Number Of Hearings To Confirm Judicial Nominees And That Biden Declined To Do So. "'Earlier this summer, my concern that a large number of nominations would not be acted upon before the close of the session prompted me to write to Chairman Biden,' South Carolina Sen. Strom Thurmond, the highest ranking Republican on the panel, said. Thurmond said he asked Biden to increase the number of hearings and the number of nominees considered at each hearing. 'This was not done, and we are now out of time,' he said." (Holly Yeager, "Senate Will Not Act On 50 Bush Judicial Nominations," States News Service, 9/25/92)

One Nominee, Ronald Leighton, Noted The Process Took 20 Months And He Ended Up Not Being Confirmed By The Judiciary Committee. "Being nominated to a United States judgeship should be exciting, but for Tacoma trial lawyer Ronald Leighton, it has been pure frustration. Leighton, a member of the Gordon, Thomas, Honeywell, Malanca, Peterson and Daheim law firm, is was officially nominated for a Western District of Washington judgeship in April. But Leighton says the nomination process has hardly been enjoyable. Sen. Joseph Biden, D-Del., chairman of the Senate Judiciary Committee, announced last week that no more nomination hearings will take place this year. … The nomination process began 20 months ago for Leighton. First came an in depth FBI investigation, which he said went quickly. This was followed by a time-consuming investigation by the American Bar Association. Meanwhile, the Senate wasn't moving too quickly." (Cathleen F. Crowley, "Nomination To U.S. District Court Frustrating," States News Service, 9/29/92) 

Biden's Reign As The Senate Judiciary Committee Chairman Set New Statistical Standards

The Average Number Of Days From Nomination To Confirmation Went From "Between 30 To 40" In The Early 1980s To 139 Days In 1992 Because Democrats "Dragged (Their) Feet." "Statistics also show that the average number of days from nomination to confirmation rose from between 30 and 40 in the early 1980s to a high this year of 139. Republicans argue that is because the Senate Judiciary Committee, controlled by Democrats since 1987, has dragged its feet on confirmations." (Henry J. Reske, "Molding The Courts," ABA Journal, 1/93)

NOTE: A Lower Percentage Of Judicial Nominees Were Confirmed During President George H.W. Bush's Term Than Both President Obama And George W. Bush's First Terms. "The Congressional Research Service released a report in May analyzing the fate of Mr. Obama's first-term judicial nominees compared to the fates of those nominated by other presidents. A look at the confirmation rates for district court nominees picked by the past four presidents shows a mixed bag: For Mr. Obama, the Senate approved 143 of his 173 nominees; for President George W. Bush, 170 of 179 nominees; for President Bill Clinton, 170 of 198 nominees; and for President George H.W. Bush, 150 of 195 nominees." (Rebecca Ballhaus, "Do Obama Nominees Face Stiffer Senate Opposition?," Wall Street Journal, 11/21/13)

THE BIDEN RULES BLOCKED THE NOMINATION OF CURRENT SUPREME COURT CHIEF JUSTICE JOHN ROBERTS, WHOSE 1992 NOMINATION TO A LOWER COURT BIDEN REFUSED TO CONSIDER

The "Best Example" Of Biden's Obstructionism Was His Refusal To Schedule A Hearing On The Nomination Of John G. Roberts. "The best example of how the issue is being played out involves John G. Roberts Jr., the deputy solicitor general in the Bush Administration. Mr. Roberts has been nominated to fill the seat on the Court of the Appeals for the District of Columbia Circuit left vacant by Clarence Thomas, who joined the Supreme Court last fall after a stormy confirmation hearing." (Neil A. Lewis, "Waiting For Clinton, Democrats Hold Up Court Confirmations," The New York Times, 9/1/92)

Roberts Was Nominated In January Of 1992 To Serve On The U.S. Circuit Court For The District Of Colombia. "President Bush said yesterday he would nominate Principal Deputy Solicitor General John G. Roberts Jr. to replace Clarence Thomas on the U.S. Circuit Court for the District of Columbia. Thomas is now on the U.S. Supreme Court. Roberts, who will be 37 on Monday, has served in the Justice Department since 1989." ("Bush To Appoint Judge," The Washington Post, 1/25/92)

Biden's Intentional Inaction Killed Robert's Nomination And Forced Him To Return To The Private Sector. "In 1992, when Chief Justice Roberts was 37, President George H.W. Bush nominated him to the U.S. Court of Appeals for the D.C. Circuit. The nomination languished without action by the Senate. In January 1993, Justice Roberts returned to Hogan & Hartson and resumed his appellate practice." ("Chief Justice John G. Roberts, Jr. Biography," The White House Archives, Accessed 2/23/16)


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