Biden: No Supreme Court nominations until after elections

By STEVE GERSTEL   |   June 25, 1992

WASHINGTON -- Chairman Joseph Biden, D-Del., of the Senate Judiciary Committee told President Bush Thursday not to submit any nominations to the Supreme Court if a vacancy develops before the November elections.

Biden said if Bush presses a nomination during an election year, as two presidents have done, the committee 'should seriously consider' not holding confirmation hearings until after the political campaign.

There are no indications that any of the justices plan to retire after the current session ends this summer.

Biden's advice to Bush was part of a 24-page Senate speech that included his recommendations for reforming the confirmation process that in recent years has led to lengthy and acrimonious battles over the nominees.

Biden said 'given the unusual rancor' over the nomination of Justice Clarence Thomas and the 'overall bitterness that infects our political system, it is my view that the prospects for anything but conflagration with respect to a Supreme Court nomination this year are remote.'

'We have seen how, in my view, politics has played far too large a role in the Reagan and Bush nominations to date,' he said. 'One can only imagine that role becoming overarching if a choice is made this year.'

Biden acknowledged that critics would view his position as an attempt to 'save the seat' in the hopes that Arkansas Gov. Bill Clinton, the Democratic nominee, wins the election.

'But that would not be our intention, if that were the course we chose,' he said. 'Instead, it would be our pragmatic conclusion that, once the political season is under way, action on a Supreme Court nomination must be put off until after the election campaigning is over. '

Biden conceded that the court might have to operate with a member short this fall, but added, 'This may be the only course of action that historical practice and practical realism can sustain.'

Unlike many previous presidents, Democrats and Republicans, Reagan and Bush have not consulted with the Senate on a nominee and have adopted a 'dangerous new path...to recast the court in their ideological image' although they lacked broad national support for their vision of the court.

'Put another way,' Biden said. 'This is not the first time that a tandem of presidents have sought to remake the Supreme Court, nor it is the first time that a divided government has had to fill a number of seats on that body -- but it is the first time that both have been attempted simultaneously.'

Biden said the effort to reshape the court was 'at the root of the current controversy' over selection of a Supreme Court justice and had led to the modern confirmation process.

'And on this point, there should be no doubt or uncertainty: the use that presidents Reagan and Bush made of the Supreme Court nominating process, in a period of divided government, is without parallel in our country,' he said. 'It is this power grab that as unleashed the powerful and divisive forces that have ravaged the confirmation process. '

He said the discord that has come to characterize the confirmation hearings began with Reagan and Bush and their decision to cede power in the nominating process to the radical right within their administration.

The nominating process under Reagan and Bush led to the rejection of Robert Bork and to the confirmations of Justices Anthony Kennedy and David Souter, whom Biden described as balanced selections.

Biden said, however, that the seeds of the 'explosion' that came with the Thomas nomination could be seen in the Kennedy and Souter selections as well because the 'right wing' of the Republican Party is driven by one issue -- abortion.

Liberals, at the same time, have refused to accept the fact that key Southern Democrats hold the balance on key issues and the court inevitably would grow more conservative.

As a result, Biden said, the confirmation process 'has been torn asunder' and that a good faith effort to confirm consensus nominees has been destroyed.

'If the president consults and cooperates with the Senate, or moderates his selections, then his nominees may enjoy my support, as did justices Kennedy and Souter,' Biden said. 'But if he does not, as is the president's right, then I will oppose his future nominees, as is my right.'

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