Joe Biden said Friday night that the US Senate should hold off on confirming a successor to Supreme Court Justice Ruth Bader Ginsburg, asserting — as Republicans did in 2016 — that voters have a right to weigh in.
“In the coming days, we should focus on the loss of the justice and her enduring legacy,” Biden, the Democratic presidential nominee, told reporters in Delaware, shortly after returning home from a campaign trip to Minnesota as the news broke of the justice’s death. “But there is no doubt — let me be clear — that the voters should pick the president and the president should pick the justice for the Senate to consider. This was the position [the] Republican Senate took in 2016, when there were almost 10 months to go before the election. That's the position the United States Senate must take today.”
Biden’s remarks signaled how, in a matter of hours, the focus of this year’s presidential election shifted sharply from the weighty crises of systemic racism and a pandemic to the ideological future of the Supreme Court. Ginsburg died earlier Friday following complications from metastatic pancreatic cancer. She was 87. In her final days, she told her granddaughter, according to NPR News, that her “most fervent wish” was that she “not be replaced until a new president is installed.”
Senate Majority Leader Mitch McConnell declared late Friday that the Senate would vote on whomever President Donald Trump nominates to fill the vacancy. (Trump, holding his own campaign rally in Minnesota at the time, had not yet learned of Ginsburg’s death.) McConnell did not specify if the vote would happen before the election or after, in a lame-duck session of Congress when Trump also could be a lame-duck president.
It was McConnell who in 2016 led the Republican strategy to prevent hearings on then-president Barack Obama’s nomination of Merrick Garland to the Supreme Court, arguing that voters in that year’s elections — including the presidential race Trump won — had a right to determine the next justice. At the time, there was a Democratic president and Republican-held Senate. Garland would have succeeded the late Antonin Scalia, a conservative jurist.
In his Friday statement, McConnell drew a distinction: that voters “reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary.”
As word of Ginsburg’s death spread Friday, one of Biden’s senior advisers quickly assessed the political gravity.
“THIS ELECTION IS THE MOST IMPORTANT ELECTION EVER,” the adviser, Greg Schultz, tweeted. He added later: “To #TeamJoe - what we do in the next 46 days will determine the future of this country. Tonight we can grieve and rededicate ourselves to the country we love.”
After Biden spoke Friday night, his campaign manager, Jen O’Malley Dillon, offered similar thoughts. Ginsburg, she tweeted, echoing Biden, “stood for all of us. And as [Biden] has shown us, we can, and must, turn pain into purpose. Grieve tonight, fight tomorrow and every day after that. Never, ever let up, and we will win.”
As vice president four years ago, Biden was among those strenuously opposing the McConnell-led Senate’s refusal to take up the Garland nomination.
“Folks, there's already enough dysfunction in Washington, DC," Biden said in March of 2016. "Now is not the time to spread that dysfunction to the Supreme Court of the United States of America.”
Republicans at the time cited a Biden speech in 1992 to help bolster their inaction on the Garland nomination, arguing that they were following “the Biden Rule.” Biden, then a senator, had suggested the Senate not take action on any Supreme Court nomination made ahead of that year’s election by then-president George H.W. Bush. Biden also said Bush should not pick a nominee until after the election. He was dealing in hypotheticals, though. There was no vacancy on the court at the time.
Biden, a former chair of the Senate Judiciary Committee, has substantial experience in Supreme Court confirmation battles. Most notably he presided over the hearings for Robert Bork, the conservative Ronald Reagan nominee whose nomination he helped scuttle, and Clarence Thomas, the George H.W. Bush nominee who was confirmed after a nationally televised hearing in which Thomas was accused of sexual harassment. Biden’s handling of the Thomas hearing, and his treatment of Thomas’s accuser, law professor Anita Hill, have been enduring points of scrutiny in his career. (Hill recently said she plans to vote for Biden.)
In 1993, Biden presided over Ginsburg’s confirmation hearings, an occasion he briefly recalled Friday night.
“I got to meet her at the time,” Biden said. “In the decades since, she had been absolutely consistent and reliable and a voice for freedom and opportunity for everyone. And, you know, she never failed. She was fierce and unflinching in her pursuit of the civil and legal rights — the civil rights of everyone.”