How the Confirmation Vote for Neil Gorsuch Strengthens the Biden Rule

On February 13, 2016, Supreme Court Justice Antonin Scalia died in his sleep. Within hours of the news being released, Senate Majority Leader Mitch McConnell (R-KY) announced that the choice of Scalia's successor should be left to the next president. Accordingly, the Senate refused to so much as hold a hearing on President Barack Obama's nominee, Merrick Garland. Senate Republicans quickly began calling their position the "Biden Rule," after a speech that then-Senator Joe Biden (D-DE) made on the Senate floor in 1992. Republicans' treatment of Garland, as well as Democrats' treatment of Scalia's ultimate successor, Neil Gorsuch, lend support to the case made by Biden that Supreme Court nominations should not be considered during a presidential election year.

The Biden Rule

You can read the text of Biden's speech or watch it below in its entire hour-and-a-half glory, but I'll summarize the important parts:

  1. The confirmation process for Supreme Court nominees is broken.
  2. The Senate has a tradition against acting on Supreme Court nominations in a presidential election year.
  3. Because it is unlikely the Senate can fix the confirmation process during an election year:
    • The president should follow his predecessors' practice by declining to nominate a new Supreme Court justice should the need arise during 1992; and
    • If the president nominates someone, the Senate Judiciary Committee should seriously consider not scheduling confirmation hearings until after the election.

Biden's First Premise & The Confirmation of Neil Gorsuch

Republicans invoking the Biden Rule tended to omit Biden's first premise, that Supreme Court confirmations are broken. They likely could have made the same case Biden did in 1992, but they never attempted to. However, the confirmation vote on Neil Gorsuch bolsters that case. Here's one of the reasons Biden said the Supreme Court confirmation process was broken:

Of Presidents Reagan's and Bush's last seven selections of the Court, two were not confirmed and two more were approved with the most votes cast against them in the history of the United States of America.

With Gorsuch being confirmed by a vote of 54-45, here's how Biden's case looks from the vantage of 2017: Of the last seven nominees--

  • Two--Harriet Miers and Merrick Garland--were not confirmed.
  • Three--Samuel Alito, Elena Kagan, and Neil Gorsuch--were confirmed with more votes cast against them than had been cast against William Rehnquist to be chief justice, one of the two mentioned by Biden as having had "the most votes cast against them" in American history. (The other was Clarence Thomas, who still sits on the Court.)
  • Additionally, two--Samuel Alito and Neil Gorsuch--were subjected to a cloture vote, and one of them--Neil Gorsuch--initially failed at that stage. Gorsuch was only the fourth Supreme Court nominee subjected to a cloture vote. (The three prior nominees were Alito, William Rehnquist, and Abe Fortas.)

In summary, the confirmation of Neil Gorsuch shows that Biden's concerns about the process of confirming Supreme Court nominees in 1992 remain valid twenty-five years later. If Democrats control the Senate in 2020, they will be able to invoke not only Republicans' treatment of Merrick Garland in 2016, but also the full version of the Biden Rule in refusing to consider a Supreme Court nomination that year, should the need arise.