Biden weighs in on the 'Biden Rule'

For weeks, Senate Republicans defending a decision not to hold Supreme Court confirmation hearings have been claiming adherence to something they've called the "Biden rule" against advancing a court nominee in the midst of an election.

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So on Thursday, Vice President Joe Biden again fought back against the namesake principle, accusing lawmakers of using deceptively selective hearing in the service of obstructing the business of the nation.

"Obstructionism is dangerous and it is self indulgent," he said. "Unless we can find common ground, how can the system designed by our founders function?"

Senate Republicans have vowed not to give a hearing to Merrick Garland, the chief judge of the District of Columbia Circuit Court who is President Barack Obama's nominee to replace the late Justice Antonin Scalia. They say given that Obama has reached his final year in office, it should be up to voters to weigh in to determine which party should control the White House and with it, the authority to shape the direction of the Supreme Court for a generation.

In an address to law students at Georgetown University, Biden said that his record – giving a hearing and a vote to every Supreme Court nominee named while he was ranking member and chairman of the Judiciary Committee – proves that the so-called "Biden rule" is non-existent.

"Not some of the time, not most of the time. Every single, solitary time," he said of holding hearings for nominations. "So now I hear all this talk about the Biden rule. It's ridiculous, it doesn't exist. The only rule I ever followed was the Constitution's fair rule of advice and consent."

Republicans' have invoked portions of a 1992 speech Biden gave while serving as a senator from Delaware and chairman of the Judiciary Committee.

See images of Joe Biden through the years:

Referencing a hypothetical Supreme Court vacancy six months before a presidential election, Biden in 1992 warned that a hearing amid a contentious presidential election season would be "not fair to the president, to the nominee, or to the Senate itself" and recommended not holding hearings.

But later in the speech -- and the core of Biden's defense against what GOP lawmakers have named the Biden rule -- the then-chairman said consideration of a nomination should go forward if the president consults with the Senate and chooses a moderate nominee.

That, Biden said Thursday, was exactly what Obama had done in selecting Garland, who has a reputation for integrity and fair-mindedness.

"No one is suggesting individual senators have to vote yes; voting no is always an option," Biden said. "But deciding in advance to turn your back before the president even names a nominee is not an option the Constitution leaves open. It's quite frankly an abdication of duty, and one that has been never happened in our history."

Republicans were quick to rebut the vice president during and in the moments after his speech Thursday.

"The vice president's weak attempt to walk back his own standard on opposing election-year Supreme Court nominees just can't be taken seriously," the Republican National Committee said in a statement. "Biden and the current Democrat Senate leadership have all supported Republicans' current position in one way or another. This is the kind of hypocrisy that has voters so disillusioned with Washington."

Spokesman for Senate Majority Leader Mitch McConnell, Don Stewart, accused Biden of forgetting that he is "the first vice president in U.S. history to have filibustered" a Supreme Court nominee.

In 2006, Biden, then-Sens. Obama and Hillary Clinton, and future Senate Democratic leaders Harry Reid of Nevada and Chuck Schumer of New York were among 29 Democrats to vote against a procedural motion to advance the nomination of Samuel Alito to a final, up-or-down vote. Justice Alito was eventually confirmed, 58-42.

And Sen. Orrin Hatch, R-Utah, a senior member of the Senate leadership and the Judiciary Committee, accused the vice president of his own act of selective remembering, having refused to hold hearings "for over 50 Bush nominees" to lower courts.

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Hatch has been boxed in by his own past comments praising Garland, and was called out by Obama for it. In 1997, when Garland was tapped for the federal bench, Hatch said he did "not think there is a legitimate argument against Mr. Garland's nomination."

But Biden, lamenting Washington's reputation for dysfunction around the country and the world, said Thursday that Republicans' obstructionism went far beyond – and would do far more damage – than in past instances.

He referenced Scalia's own writings against allowing a lengthy vacancy on the court, and noted that a series of 4-4 splits, the first of which was handed down Wednesday, could create a constitutional crisis.

A number of contentious legal issues are before the court this term, including voting rights, unions, immigration, freedom of religion, health care and reproductive rights -- all "issues the court believed were too important to remain in limbo would remain in limbo, suspended in midair," Biden said.

"They'll be left clearing the case from the docket or kicking it down the road to be argued under a new court" or returned to the lower court decision, which Biden said could create situations where people living in different states could have the law applied differently to them.

"The uncertainty it perpetuates, the way it fractures our country, if those conflicts were allowed to stand we end up with a patchwork Constitution," he said. "It would be a clear violation of the equal protection under the law."