Biden will also argue that a vacancy on the court left for months on end while Republicans refuse to consider any nominee is harmful for the country.
“The Framers designed our system to give one Supreme Court the responsibility of resolving conflicts in the lower courts,” BIden will say. “If those conflicts are allowed to stand, we end up with a patchwork Constitution inconsistent with equal justice and the rule of law.”
Biden will go on to argue that, “The meaning and extent of your federal constitutional rights ...all could depend on where you happen to live.”
“The longer this high court vacancy remains unfilled, the more serious a problem we will face—a problem compounded by turbulence, confusion, and uncertainty about our safety and security, our liberty and privacy, the future of our children and grandchildren,” he will say. “At times like these, we need more than ever to have a fully functioning Supreme Court, a Court that can resolve divisive issues peacefully. Dysfunction and partisanship are bad enough on Capitol Hill.”
Having served in the Senate for more than three decades, it’s no surprise that Biden is taking an active role in the effort lobbying for the consideration of Obama’s nominee, particularly as the Vice President is well-liked by lawmakers across the political spectrum. But Republicans have been using Biden’s record against him, pointing to what they have dubbed the “Biden rule.” The rule, they say, is based on a speech Biden gave from the Senate floor in 1992 urging President George H.W. Bush to put off nominating a Supreme Court justice until after the election.
Biden’s defenders counter that Republicans are taking his speech out of the context: He was talking about a hypothetical situation in which a justice retires the summer before an election and particularly if the nominee was ideologically extreme. Biden also said in the speech he would consider a nominee if he or she was a compromise moderate.
According to a legal expert familiar with the vice president’s thinking, Biden will bring up this context himself in Thursday’s speech.
“He’ll have some pretty pointed comments.about what he thinks of the so-called ‘Biden rule,’” the expert said.
The expert said that first and foremost Biden’s speech will have an “educational function” to make “sure people fully understand the consequences of this delay over this long period and just how the Republican position violates their constitutional duty.”
Read the excerpts provided to TPM below:
My consistent advice to Presidents of both parties has been that they should engage fully in the constitutional process of Advice and Consent— and my consistent understanding of the Constitution has been that the Senate must then do so as well. Period.
In my time as the ranking Democrat or as Chairman of the Senate Judiciary Committee, I was responsible for eight nominees to the Supreme Court—some I supported, others I voted against.
And in all that time— Every nominee was greeted by committee members. Every nominee got a committee hearing. Every nominee got out of the committee to the Senate floor. And every nominee, including Justice Kennedy—in an election year—got an up or down vote by the Senate.
Not much of the time. Not most of the time. Every single time.
The Framers designed our system to give one Supreme Court the responsibility of resolving conflicts in the lower courts.
If those conflicts are allowed to stand, we end up with a patchwork Constitution inconsistent with equal justice and the rule of law.
Federal laws—laws that apply to the whole country—will be constitutional in some parts of the country but unconstitutional in others.
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.
We must make sure that a fully functioning Supreme Court is in a position to address these significant issues, and that 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.”
Even worse, a patchwork Constitution will deepen the gulf between the haves and have-nots. Under a system of laws “national” in name only, the rich and powerful will manipulate geographical differences and game the system.
Our democracy rests on the twin pillars of basic fairness and equal justice under law. Both those pillars demand that we not trap ordinary Americans in whatever lower courts fate has chosen for them, while letting the wealthy and powerful selectively choose the lower courts that best fit their needs and preferences.
The longer this high court vacancy remains unfilled, the more serious a problem we will face—a problem compounded by turbulence, confusion, and uncertainty about our safety and security, our liberty and privacy, the future of our children and grandchildren.
At times like these, we need more than ever to have a fully functioning Supreme Court, a Court that can resolve divisive issues peacefully.
Dysfunction and partisanship are bad enough on Capitol Hill.
But we can’t let the Senate spread this dysfunction to the Supreme Court of the United States.
The President has fully discharged his constitutional obligation.
Now it is up to the Senate to do the same, as all American expect them to do. They owe it to the American people to consider his nomination and to give him an up or down vote.