(CNSNews.com) - Then-Vice President Joe Biden recorded a videotape for the Obama White House on July 30, 2016 to argue that the Senate must vote that year on filling the Supreme Court vacancy caused by the death of Supreme Court Justice Antonin Scalia.
“For 17 years, I was chairman or ranking member of Senate Judiciary Committee, which overseas nominations to the court,” Biden said on the tape.
“I presided over nine total nominations—more than anyone alive. Some I supported. Others I didn’t. But every nominee was greeted by committee members,” said Biden.
“Every nominee got a committee hearing,” he said.
“Every nominee got out of the committee to the Senate floor, even when a nominee did not receive majority support in my committee,” said Biden.
“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.
“That’s the Constitution’s clear rule of Advice and Consent,” said Biden. “And that’s the rule being violated today by Senate Republicans.”
President Barack Obama had nominated Appeals Court Judge Merrick Garland to take the seat vacated by Scalia, who had died on February 13, 2016.
Senate Majority Leader Mitch McConnell declined to have the Senate consider the Garland nomination, saying the Senate would wait until after the 2016 presidential election to consider a nominee to the court.
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said in the day Scalia died.
In July of that year, Biden recorded the video with Judge Tim Lewis who had been nominated to both a federal district court judgeship and appellate court judgeship by President George H.W. Bush. Bush nominated Lewis to the appellate court judgeship on Sept. 17, 1992—less than two months before the 1992 election—and the Senate confirmed Lewis as a judge on the U.S. Court of Appeals for the Third Circuit on Oct. 8, 1992, less than a month before the election.
Here is a transcript of the video Biden made for the Obama administration in July 2016:
Vice President Joe Biden: “Hi, folks. Joe Biden here and I’m sitting with Tim Lewis, a retired federal judge who was nominated to the bench by a Republican President and confirmed by a Democratic Senate—within four weeks of a presidential election.
Judge Tim Lewis: Hello, everyone. That’s right. And I’m living proof that President Obama’s nominee to the Supreme Court—Chief Judge Merrick Garland—deserves similar consideration by today’s Senate.
Biden: Not only because Merrick Garland is recognized—without exception—by the right and the left as one of America’s sharpest legal minds and a model of integrity.
Lewis: But also because that’s what the Constitution requires. The sitting President shall—not may—but shall nominate someone to fill a vacancy on the Supreme Court, with the advice and consent of the Senate. That includes consulting and voting.
Biden: “Here’s how it works. For 17 years, I was chairman or ranking member of Senate Judiciary Committee, which overseas nominations to the Court. I presided over nine total nominations—more than anyone alive. Some I supported. Others I didn’t. But every nominee was greeted by committee members. Every nominee got a committee hearing. Every nominee got out of the committee to the Senate floor, even when a nominee did not receive majority support in my committee. 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. That’s the Constitution’s clear rule of Advice and Consent. And that’s the rule being violated today by Senate Republicans.
Nobody is suggesting that Senators have to vote “yes” on a nominee. Voting “no” is always an option. But saying nothing, seeing nothing, reading nothing, hearing nothing, and deciding in advance simply to turn your backs—is not an option the Constitution leaves open.
Lewis: “And it has real consequences for all of us. In the four months since Merrick Garland’s nomination, we’ve already seen how the Senate’s refusal to act is preventing the Court from fulfilling its duty of interpreting what the law is and resolving conflicts in lower courts. Historic obstruction is leading to greater litigation costs and delays—the burden falling mostly on average Americans rather than corporations with endless resources. Unresolved decisions by the Supreme Court are leading to federal laws that should apply to the whole country being constitutional in some parts but unconstitutional in others. If this continues, our freedom of speech, our freedom to practice our faith, our right to vote, our right to privacy—all could depend on where we happen to live.
Biden: “And the longer the vacancy remains unfilled, the more serious the problem—with greater confusion and uncertainty about our safety and security. If you have eight Justices on a case, Justice Scalia himself wrote, that it raises the, “possibility that, by reason of a tie vote, the Court will find itself unable to resolve the significant legal issue presented by the case.” And if Republican Senators fail to act, it could be an entire year before a fully staffed Supreme Court can resolve any significant issue before it.
Folks, there’s enough dysfunction in Washington, D.C. Now is not the time for it to spread to the Supreme Court.
Lewis: “And we’re better than what we’re seeing. As a country, we’re only as strong as the traditions we value—that we sustain by dedicating ourselves to something bigger than ourselves.
Biden: “Folks, the defining difference of our great democracy has always been that we can reason our way through to what ails us and then act as citizens, voters, and public servants to fix it. But we have to act in good faith. For unless we find common ground, we cannot govern. For the sake of the country we love—we all have to do our job. The President has done his. Senate Republicans must do theirs.
“Thanks for listening and have a great weekend.”