Biden pushes for Garland confirmation as Republicans dig into nominee's past

Vice President Joe Biden speaks at Georgetown Law School in Washington, Thursday, March 24, 2016. Biden is pointing to his years as Senate Judiciary Committee chairman to cast Republicans' election-year Supreme Court blockade as a dangerous new escalation of partisanship. (AP Photo/Manuel Balce Ceneta)

As a Republican congressman announced a new investigation linked to Supreme Court nominee Merrick Garland, Vice President Joe Biden said Thursday that the Senate's handling of Garland's nomination is "an abdication of the Senate's solemn constitutional duty."

"The American people deserve a fully staffed Supreme Court of nine," Biden said.

He lamented the lack of cooperation in the Senate, where Republican leaders vowed not to allow a Judiciary Committee hearing or a vote for President Obama's nominee within hours after the death of Justice Antonin Scalia.

Republicans have sought to justify their stance by citing a 1992 Senate floor speech where Biden, then chairman of the Judiciary Committee, said he would not consider a hypothetical nomination by President George Bush in an election season.

In a speech at Georgetown Law School Thursday, Biden explained the context of those comments and emphasized that he had also said, "If the president consults and cooperates with the Senate or moderates his selections, then that nominee will enjoy my support."

He pointed to his record as chairman of giving every Supreme Court nominee a hearing.

"To now hear all this talk about the Biden rule is frankly ridiculous. There is no Biden rule," he said, arguing that the only rule he followed in the Senate was the Constitution.

He also stated that the president resisted calls to nominate a more liberal judge and chose Garland because the government is divided and a moderate selection was the best way to keep the government functioning.

Several Republican senators tweeted responses to Biden Thursday, focusing on one part of his 1992 speech and ignoring his statement that every nominee got a hearing and a vote. There is little reason to believe his latest comments will change any minds in the Senate, and some in the House may now be putting additional obstacles in Garland's path.

As reported by Sinclair Broadcast Group Wednesday, the House Oversight and Government Reform Committee has opened a formal inquiry into the case of Judge Richard Roberts, who retired from the U.S. District Court last week. Due to his long-time professional relationship with Roberts, Garland recused himself from a misconduct investigation involving the judge allegedly sexually assaulting a 16-year-old girl.

Committee Chairman Jason Chaffetz (R-UT) said in a letter to the Administrative Office of the U.S. Courts that his inquiry will include Garland's handling of misconduct complaints. However, Republican officials told the New York Times the committee is not currently planning to question Garland.

The general public remains firmly in favor of the Senate giving Garland fair consideration. According to a new Quinnipiac University poll, 62 percent of Americans want the Senate to consider the president's nominee, but a majority of Republicans do not.

Several Republicans have agreed to meet with Garland, including Judiciary Committee Chairman Chuck Grassley, but only three have called for hearings and none have said they would vote for him.

While Republicans often blame the politicization of the Supreme Court confirmation process on Democrats' handling of Reagan nominee Robert Bork in 1987, experts say politics has always played a role in the court.

"We certainly have seen political issues being a part of the process right from the very beginning," said Amy Lynn Steigerwalt, associate professor of political science at Georgia State University.

"There's always tension between the Senate and the president," said Patrick Hickey, an assistant professor of political science at West Virginia University.

A stalemate between President George W. Bush and a Democratic Senate a decade ago over lower court nominations may have been a "harbinger" of the current fight, Hickey said. Republicans were outraged by Democrats filibustering Bush's nominees, but most of them did at least get confirmation hearings.

Although the Republican position on Garland is an escalation of that tactic, partisan opposition to a Supreme Court nominee is nothing new. Even one of President George Washington's nominees was rejected by the Senate in 1795.

"You can't credibly ask nationally elected political elites to do something important and not have politics injected into it," said Matthew Hitt, assistant professor of political science at Louisiana State University.

"The politicization of the process comes and goes in long waves," said Richard Friedman, professor of law at the University of Michigan. During and after the Civil War, Supreme Court nominations became very political, but there was only one nominee rejected between 1894 and 1967.

What did change with Bork, according to Steigerwalt, is the involvement of so many outside groups trying to influence the process, including "groups whose primary purpose is to look into judicial nominations." That phenomenon has grown, with the National Rifle Association speaking out against Obama's nominees over gun rights issues.

"We have more well-developed interest groups than we had 100 years ago," Friedman said. As the court has taken on increasingly political social issues and civil rights matters, these outside groups became more engaged.

Hitt recalled outside groups pressuring senators during the Samuel Alito confirmation. Garland's record is particularly difficult to spin as one of left wing zealotry, though.

Hickey dismissed the House Oversight Committee inquiry as a "fishing expedition," adding that the same Republicans might also be complaining if Garland had not recused himself.

"Republicans painted themselves into a corner," he said, by promising not to consider any nominee. Now that Obama has chosen Garland, who he noted top Republicans have praised and confirmed in the past, they're digging to find anything to support their position.

Even before Obama nominated Garland, a lobbying group was already distorting the record of judges on the president's short list in pre-emptive attacks. That group is now claiming Garland "has a very liberal view of gun rights," an allegation the NRA has also made based on two cases where he did not actually express an opinion on the Second Amendment.

The immediate declaration that an Obama nominee would not be considered before one was even named for an existing vacancy does appear to be unprecedented.

"That is so different from what we've ever seen historically that it's somewhat hard to even fathom what to do with it," Steigerwalt said. Senate leaders likely recognize that rejection of nominees when they reach a vote in the Senate is very rare, though.

"McConnell is in many ways trying to stop the process from even starting because he knows if it does then Garland will be confirmed," she said.

In the past, a divided government has resulted in more moderate Supreme Court justices being nominated, but it has not ground the confirmation process to a halt.

"What you have here is sort of a perfect storm," Friedman said of the circumstances surrounding Garland's nomination. It is the last year of a presidency, with a hostile Senate and an opening on the court that could alter its ideological balance.

"It's almost inevitable in this context that it will be treated as a highly political matter," he said.

Republicans are now gambling that they will win the presidential election in the fall. If they do not, a Democrat is sure to nominate a younger and more liberal judge.

"In a way, the president was offering a carrot out to the Republicans by saying I'm going to nominate a guy who's in his 60s and kind of moderate," Friedman said.

Hitt agreed that the circumstances are unique due to the potential for the ninth justice to change the ideological makeup of the court.

"It's unclear that this vacancy has a good historical analogy, at least in the last 60 or 70 years," he said.

Experts agree that Republicans and Democrats have both politicized nominees in the past, but trying to assign blame over who did it first misses a larger point. Steigerwalt said the complete refusal to consider Garland could have significant implications.

If Scalia's seat remains open until the next president is inaugurated, a confirmation likely will not take place until Spring 2017. At that point, the Supreme Court will have already heard most of its oral arguments for the term, so the new justice might not really hear cases until October 2017.

"This is one of nine," Steigerwalt said. "There are no replacements, there are no fill-ins, and the court many times needs all nine in order to be able to operate."

The standoff between Bush and Democrats over lower court judges was resolved through a bipartisan compromise by a small group of senators. It is possible a similar group, possibly including swing state Republicans who have signaled at least some openness to Garland, could again break the impasse again, but nothing can force that to happen.

The 2016 election may determine whether the Supreme Court nomination process gets better or worse from here. If the public is angered by the obstruction, they will punish Republicans at the ballot box. If the GOP wins the White House and retains control of the Senate, it will be tacit approval of this strategy.

"It's in the American people's hands," Hickey said. "We get the government we deserve."

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