Biden Says Stalemate Over Garland Risks Constitutional Crisis

  • Vice president steps up pressure to confirm high court nominee
  • Republicans cite 'Biden rule' as justification for inaction

Biden Trashes ‘Biden Rule’ as Frankly Ridiculous

Vice President Joe Biden argued Thursday that Senate Republicans’ decision not to confirm a new justice to the Supreme Court is an "abdication" of responsibility that would produce "a patchwork Constitution," as the White House intensified its pressure campaign to fill the vacancy created by the death of Justice Antonin Scalia.

Biden, in an address to students and faculty at Georgetown Law School, signaled a new effort by the administration to highlight the real-world consequences of an extended vacancy on the court.

"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," Biden said. "At times like these, we need more than ever to have a fully functioning Supreme Court, a court that can resolve divisive issues peacefully."

A 4-4 deadlock on the shorthanded court effectively upholds a lower court’s ruling. That means decisions on some of the toughest questions expected to come before the court -- including the legality of President Barack Obama’s immigration policies, a University of Texas admissions policy that considers race, and the Affordable Care Act’s contraception mandate -- won’t set nationwide precedent.

"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," Biden said.

Biden warned the standoff could lead to a "genuine constitutional crisis."

"I’ve never seen it like this," he said. "Washington, right now, the Congress is dysfunctional and they’re undermining the norms we use to govern ourselves."

Swing States

Democrats are expected to increasingly highlight that possibility in the coming weeks in an effort to rally voters and ratchet up pressure on swing-state Republican senators like Pennsylvania’s Pat Toomey, New Hampshire’s Kelly Ayotte, and Illinois’s Mark Kirk, who are all facing tough reelection contests.

Biden also raised the specter of unfairness and inequality, saying the stalemate at the Supreme Court could mean "the wealthy and powerful selectively choose the lower courts that best fit their needs and preferences."

Democrats are hoping their campaign could lead Republican leaders to reverse their plans to not hold hearings or a vote on the nomination of Merrick Garland, the chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. Garland was nominated by Obama on March 16 to replace Scalia.

Biden said Garland is eminently qualified. "You’ve heard no one -- no one -- question his integrity," he said. "You’ve heard no one question his scholarship."

And, Biden said, Obama nominated him in part because of his reputation as a moderate. The vice president said Garland would not serve in the same role as former Justice William Brennan, the longtime leader of the Court’s liberal wing.

"We ultimately chose the course of moderation," Biden said. "I think that’s the responsibility of an administration in a divided government. Some of my liberal friends disagree with me."

Republicans say the vote should wait until the next president assumes office in January, and repeatedly pointed to a June 1992 speech in which Biden, who once chaired the Senate Judiciary Committee, said that the Senate “should seriously consider not scheduling confirmation hearings" on anyone then-president George H.W. Bush might nominate "until after the political campaign season is over.”

’Liberal Direction’

Senate Judiciary Chairman Chuck Grassley said Thursday that Biden is trying to rewrite history when it comes to his 1992 speech.

"The American people should be provided an opportunity to weigh in on whether the court should move in a more liberal direction for a generation, dramatically impacting the rights and individual freedoms we cherish as Americans,” the Iowa Republican said in a statement.

The White House said that Biden’s comments referred to a time later in campaign season, and, in the same speech, Biden said he would consider voting on a consensus candidate if Bush were to consult with the Senate. Biden also noted his committee held a hearing for Justice Anthony Kennedy, who was confirmed during the last year of President Ronald Reagan’s second term while Biden served as chairman.

Biden said Republicans have been quoting selectively from this remarks.

"They completely ignore the fact at the time I was speaking of the time of the dangers of nominating an extreme candidate without proper senate consultation," he said. "I made it absolutely clear I would go forward with the confirmation process as chairman, even a few months ahead of a presidential election."

Democrats have found some early traction on their messaging. More than half the country -- 54 percent -- said they approve of Obama’s his handling of the vacancy in the latest Bloomberg Politics national poll, released earlier Thursday. Some 62 percent say Republicans in the Senate are wrong not to hold hearings on the nomination.

Garland, meanwhile, will not participate in cases before his court while his nomination process plays out, said Mark Langer, the clerk of the U.S. Court of Appeals for the District of Columbia. Garland will continue to perform his administrative duties, Langer said.

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