There Is No ‘Biden Rule’

March 15, 2016
Guest Post

by Verna Williams, Judge Joseph P. Kinneary Professor of Law, University of Cincinnati College of Law

For those concerned about the Senate’s unprecedented power grab in refusing to consider anyone President Obama nominates to the Supreme Court, Iowa Senator Chuck Grassley has an answer: The Judiciary Committee is merely following the Biden Rules.

That’s what he cited twice in the Committee’s first meeting since Justice Scalia’s sudden death last month. Mr. Grassley’s casual reference suggested that, rather than engaging in unparalleled obstructionism, the Republican Senators were engaging in one of their esteemed traditions, like eating bean soup in the Capitol cafeteria. But, the text of Mr. Biden’s 1992 speech on the Senate floor suggests otherwise.

It was late June. The nation and Senate were recovering from bruising hearings to confirm Justice Thomas. Re-examining the Judiciary Committee’s handling of Professor Anita Hill’s allegations of sexual harassment, Mr. Biden explained that “many questioned whether we took Professor Hill’s charges seriously, investigated them thoroughly, and disseminated them appropriately.” While Mr. Biden concluded that he and his colleagues had done their best, given Hill’s desires for confidentiality, he nonetheless believed a new set of rules should apply going forward. He announced that the Committee would:

  • Advise sources that any information the Committee obtained would be placed in a nominee’s FBI file and be available on a confidential basis to the Senate before voting on the nomination;
  • Hold closed, confidential sessions about all Supreme Court nominees; and
  • Meet routinely with nominees in closed session, on the record, and under oath about any investigative charges.

Throughout the process, Senators would be able to review any documents, reports, or transcripts in a manner that protected confidentiality. Those are the Biden Rules, and they appear toward the end of his speech.

Conspicuously absent in that context, in which Mr. Biden clearly is setting forth how the Judiciary Committee would do business, is any suggestion that it would abandon its constitutional duty to engage in the confirmation process during an election year. But, in discussing the history of such nominations, Mr. Biden noted that when a President sought to appoint a justice in the summer or fall of an election year—just a few months before the election—that typically resulted in failure. In contrast, when the President selected candidates before the summer, the Senate confirmed them. Not a rule—an observation.

But, even assuming it applies to the current situation, as Republican Senators suggest, Mr. Biden’s statement actually supports the Senate doing its job in this case. Out of a 20-page speech, Republicans selected one sentence and declared it the Biden Rule, the one they were following. But another playbook informs their actions: Massive Resistance.

That term refers to Southern refusal to abide by the Supreme Court’s decision in Brown v. Board of Education, a particularly shameful chapter in our history, about which I have written. Stunned by the Court finally striking down Jim Crow, the Virginia General Assembly met in special session to address what it viewed as an incursion on states’ rights. Columnist James K. Kilpatrick advised lawmakers that interposition supported repudiating federal authority. Governor Thomas Stanley denounced the Court’s actions as unlawful and unconstitutional. Buoyed by U.S. Senator Harry Byrd, Stanley established a commission to determine how to respond. Just as today, the shutdown was a favored strategy. Virginia’s Prince Edward County, an A student in this regard, stopped levying taxes for education and kept its schools closed for five years, becoming internationally renowned in the process.

Like mid-century Virginia lawmakers, today’s Republicans confront the prospect of the social order upending. Mr. Obama, whom Majority Leader Mitch McConnell pledged to make a one-term President, now has the opportunity to change the highest court in the land for generations to come. Like Virginia’s lawmakers, today’s Senators responded to the threat Mr. Obama poses by declaring his actions as unconstitutional, illegitimate, and overreaching. And, like those lawmakers of yore, Senators threw a wrench in the workings of government instead of accept an outcome they disliked.

And, just like Virginia’s lawmakers, these Senators are wrong.

They would do themselves, the nation, and the Supreme Court a service by turning to the right playbook this time. The one Senator Orrin Hatch has written about at length: The Constitution.