When politicians sanctimoniously advocate positions that everyone knows are the opposite of the ones they would take if the partisan setting were flipped, they reinforce the contempt Americans feel towards them as a class. The dispute over whether to hold hearings for and/or to confirm Merrick Garland is a case in point.
Both sides are guilty to some degree of advancing positions they would denounce if the shoe were on the other foot — that is, if Judge Garland were the conservative nominee of a Republican president being blocked by a Democrat-controlled Senate. But most Republicans avoid full-fledged hypocrisy by relying mainly on past practice and past statements by Democrats about how the confirmation process should work (or not work). Democrats, by contrast, argue from alleged constitutional and other first principles — ones they rejected when the shoe was on the other foot.
Chief among the Democrats who rejected the principles they now advance is Vice President Joe Biden. Ed Whelan reminds us that, in a Senate floor statement he read (ineptly) in June 1992, then-Senator Biden, chairman of the Senate Judiciary Committee, said that if a Supreme Court vacancy were to arise while the “political season [i.e., presidential campaign] is underway,” President George H.W. Bush should follow the “practice of the majority of his predecessors” and not nominate anyone to the vacancy until after the election. Biden added that if President Bush were to ignore that advice, the Senate Judiciary Committee should “seriously consider not scheduling” a hearing until after the election.
Yesterday, Biden tried to talk his way around the fact that the position he takes regarding the Garland nomination contradicts the position he took in 1992. He claimed that the “unequivocal bottom line” of his 1992 Senate floor speech was that “if the president consults and cooperates with the Senate, or moderates his selections, then his nominees may enjoy my support.” According to Biden, “I made it absolutely clear that I would go forward with the confirmation … process as chairman, even a few months before [the] presidential election if the nominee were chosen with the advice and not merely the consent of the Senate.” He also claims that “at the time I was speaking of the dangers of nominating an extreme candidate without proper Senate consultation.”
Yes, Biden did make those additional remarks [about possibly confirming a nominee chosen with the advice of the Senate or a moderate], but he also preceded them by explaining he was discussing “how [the nomination] process might be changed in the next administration, whether it is a Democrat or a Republican.” He further added that he was describing what should occur after “this next election,” particularly if such an election were to produce divided government.
And lest there be any confusion about what Biden was talking about, he began his speech by noting he planned to address both “the question of what should be done if a Supreme Court vacancy occurs this summer” in addition to “four general proposals for how . . .the nomination and confirmation process should be changed for future nominations.”
In other words, Biden didn’t back off from his obstructionist position about considering an election year nominee for the Supreme Court by President Bush. Instead, he talked about how the nomination and confirmation process might be changed after the next election.
It’s bad enough when politicians argue hypocritically about something as serious as the Supreme Court confirmation process. It’s much worse when the Vice President of the United States speaks dishonestly about the matter.
UPDATE: Ed Whelan has more on this subject here.