Vice President Joe Biden addressed President Barack Obama’s nomination of Chief Judge Of the United States Court of Appeals Merrick Garland to the Supreme Court, the so-called “Biden rule” and the consequences of an eight-member court in a speech at the Georgetown University Law Center on Thursday.
Around 300 students, faculty and staff gathered to listen to Biden’s remarks, which highlighted the divisiveness currently permeating the political climate. GULC professor Victoria Nourse introduced the vice president, emphasizing his ability to bridge this gap between parties.
“He knows how to forge consensus when that system has faced deep division,” Nourse said. “Each day for 40 years, Joe Biden has served the public life. He has lived up to both the word and spirit of the Constitution and the oath of office he swore to uphold. We are lucky he is here at Georgetown to talk about what that means for our government today.”
Biden opened by lauding Garland as Obama’s choice for the nomination, focusing on the judge’s bipartisan support.
“You notice, you’ve heard no one — no one — question his integrity. You’ve heard no one question his scholarship. You’ve heard no one question his open-mindedness,” Biden said.
Biden also called attention to Garland’s reputation as a moderate, something he said was a conscious choice because of current political polarization.
“We did our duty. The president did his duty. We sought advice. And we ultimately chose the course of moderation because the government is divided,” Biden said. “Merrick Garland intellectually is capable as any justice, but he has a reputation for moderation. I think that’s the responsibility of the administration in a divided government. It’s about the government functioning.”
The vice president argued that the attempts of Republican senators to block Garland’s nomination endorse partisanship and have the potential to destabilize the government itself.
“What Republican senators say they will do, in my view, can lead to a genuine constitutional crisis, borne of the dysfunction of Washington. I’ve been here a long time. I’ve been in the majority, the minority, the majority, the minority,” Biden said. “But I’ve never seen it like this. Washington right now — the Congress is dysfunctional. And they’re undermining the norms that govern how we conduct ourselves. They’re threatening what we value most, undercutting in the world what we stand for.”
Biden also addressed the Biden rule, which draws from a speech the then-senator delivered during the 1992 presidential election season urging the Senate to refrain from Supreme Court confirmation hearings until after the election. Recently, many Republicans have been referencing this speech to back their decision not to hold hearings in Garland’s case.
“They completely ignore the fact that, at the time, I was speaking of the dangers of nominating an extreme candidate without proper Senate consultation,” Biden said. “They completely neglected to quote my unequivocal bottom line.”
Biden went on to repeat his remarks from the 1992 Senate floor in an attempt to clarify their meaning, before dismissing the Biden rule as a fictional concept.
“I said, and I quote, ‘If the president consults and cooperates with the Senate, or moderates his selections, then his nominees may enjoy my support.’ End of quote. So now I hear all this talk about the Biden rule. It’s, frankly, ridiculous. There is no Biden rule. It doesn’t exist,” Biden said.
Biden transitioned to speaking on the importance of the Supreme Court in everyday life, quoting the late Justice Antonin Scalia (CAS ’57) in arguing for a ninth member to ensure no tied votes on major cases.
“I don’t believe anybody in their right mind would propose permanently returning the Court to a body of eight,” Biden said. “This is all the more true in an era when Congress has become almost entirely dysfunctional. And no one other than the deceased Justice Scalia wrote, if you have eight justices on a case, it raises the possibility that, ‘By reason of a tie vote, [the Court] will find itself unable to resolve the significant legal issues presented by the case.’”
Biden said another risk of a split court is the potential for lower rulings to stand, despite these rulings being uneven across state lines. He cited cases currently pending Supreme Court rulings, including those dealing with abortion rights, affirmative action and Obama’s health care law.
“Pressing controversies that prompted the Court to grant review in the first place, in many cases because of different decisions in different circuit courts, would remain unresolved,” Biden said. “The issues the Court believes were too important to leave in limbo are going to remain in limbo, suspended in midair.”
Biden expressed a desire to see a full court as means of preventing the spread of political divisiveness and the dysfunction that accompanies to the judicial branch.
“The American people deserve a fully staffed Supreme Court of nine. Not one disabled and divided, but one that is able to rule on the great issues of the day,” Biden said. “Dysfunction and partisanship are bad enough on Capitol Hill. But we can’t let the Senate spread that dysfunction to another branch of the government, to the Supreme Court of the United States. We must not let it fester until the vital organs of our body politic are too crippled to perform their basic functions they’re designed to perform.”
Avani Uppalapati (LAW ’18) described the atmosphere in the room during Biden’s remarks as intense because of the reality of the problems he outlined, and added that she saw Biden’s remarks as a means of uniting a divided country.
“I think we all knew the gravity of what he was going to say and we pretty much had an idea of this is what he was going to talk about,” Uppalapati said. “It was very interesting that he kept referring to the Republican senators as his friends because he’s trying to show that he’s trying to put people above politics, so it was interesting to hear that.”
Biden ended his remarks by challenging the law students to reflect on his remarks and discuss them, even if they disagree with him.
“One of the reasons I came to a law school — a great law school — to deliver these remarks is I want you, when you go back to class, to challenge what I’ve said,” Biden said. “Take a look and see whether the argument I’m making is right or wrong. Make your voices heard. Make your voices heard.”