The "Biden Rule"

March 16, 2016


Today President Obama put forth, for the Senate's consideration, his nominee for a seat on the Supreme Court. This seat being the replacement for Justice Scalia's passing.

In his statement the president, in part, offered this: "I simply ask Republicans in the Senate to give him a fair hearing and then an up or down vote. If you don't, then it will not only be an abdication of the Senate's constitutional duty, . . ."

As a supposed Constitutional "scholar", clearly the president must have realized his statement was in error - the US Constitution specifies no such "duty".

The Appointments Clause, i.e., Article II, Section 2, Clause 2, states:

"He[The President] shall have the Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Councils, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

The above clause gives the Senate the AUTHORITY & POWER but speaks not one word of the REQUIREMENT or DUTY to consider or confirm such nominee.

Article I, Section 5, Clause 2 states:

"Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a member."

Therefore, it is clear that each house of Congress has the authority to create its own set of rules.

The Senate Majority Leader has indicated his opposition to considering any Supreme Court Justice nominee until after this year's election cycle has ended.

In part the Senate Majority Leader cited the unofficial "Biden Rule" as a precedent.

What is the "Biden Rule"? It is named after the current Vice President, Joe Biden, who in 1992, as a Senator, gave a speech on the appropriateness of nominating a Supreme Court Justice during a presidential election year. At the bottom of this offering is a link to the actual video of Biden's remarks.

Almost immediately after the Senate Majority Leader's statement stories started showing up decrying that people were taking Biden's statement out of context. Even Biden, himself issued a statement to this effect.

Next is the actual video of Joe Biden from 1992.

But, first, this link offers additional opinions on this subject in general.

In this video see if you can discern where ole Joe isn't being ABSOLUTELY clear on what he meant.