Poof! ‘Biden Rule’ no longer rule

Sens. Chuck Grassley and Joni Ernst firmly support issue positions with which most Iowans agree.

They’re strongly pro-ethanol, and pro-flood control, and pro-first-in-the-nation caucus status for Iowa. They also favor retaining the Electoral College as the method for choosing the president, lining up with most Iowans in that regard.

They also have their own favorite issues.

For example, Sen. Ernst gives strong support to veterans’ interests, and Sen. Grassley has steadily protected whistleblowers.

As Republican spear-carriers, they also almost always support their party’s positions, unless one of those positions conflicts with what Iowans want. In those cases, they could sometimes bolt party orthodoxy, most likely with sympathetic understanding and tacit permission from Senate Majority Leader Mitch McConnell.

There’s an issue, though, that could force both Iowa senators into a very uncomfortable political vise.

It’s a situation that would be tragic if it were to occur, and I pray that it doesn’t. I’m sure that Grassley and Ernst feel the same way, for many reasons.

It’s the challenge that would arise if a vacancy occurred on the U.S. Supreme Court this year.

On Feb. 13, 2016, in the final year of President Obama’s two-term presidency, Supreme Court Chief Justice Antonin Scalia died unexpectedly. In keeping with his constitutional responsibility, President Obama sent to the U.S. Senate his nominee to fill the vacancy: Judge Merrick Garland, a 19-year veteran of the U.S. Court of Appeals for the District of Columbia, where he was serving as chief judge.

Judge Garland was highly respected, both within the legal community and among knowledgeable government officials. 

Six years earlier, in 2010, for instance, Sen. Orrin Hatch, a conservative longtime Republican senator from Utah who had served three terms as chair of the Senate Judiciary Committee, had strongly praised Judge Garland. 

At that time, Obama was about to nominate someone to fill a Supreme Court vacancy. It ultimately went to Justice Elena Kagan. Hatch said then that Judge Garland would be a “consensus nominee” and that there was “no question” that he would be confirmed.

Six years later, Obama nominated Judge Garland in mid-March 2016, a month after Scalia’s death. Just a week prior to that nomination, Hatch once again praised Garland, said his nomination would be a strong and moderate one, and called Garland “a fine man.”

But the Republican Party leadership and its rank-and-file absolutely didn’t want Democratic President Obama to fill the vacancy with someone of his choosing.

So Leader McConnell, and Senate Judiciary Chair Chuck Grassley, dredged up a floor speech from back in 1992, some 24 years earlier, by then-Sen. Joe Biden.

Biden’s remarks included the opinion that then-President George H.W. Bush should consider refraining from sending a nominee for a Supreme Court vacancy to the Senate, should such a vacancy occur, until after the general election in November that year. 

Such a delay, Biden said at the time, would give whoever was to be elected in November a sense of how the American people might feel about what kind of justice should be appointed.

Biden also said in the speech that he would support a Bush nominee if Bush consulted with the Senate or if he nominated a moderate.

But McConnell and Grassley ignored that part of the speech, concentrating instead only on Biden’s suggestion that a president should delay the appointment if the vacancy occurred in a presidential election year.

Republican senators in March 2016, after Judge Garland’s nomination, piled on to advocate for the “Biden Rule.” Sens. Grassley and Ernst both spoke in favor of the concept.

Grassley: “A lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics. The American people shouldn’t be denied a voice.”

Ernst: “This is not about any particular nominee; rather this is about giving the American people a voice. ... I support Senator Grassley’s decision to exercise the Senate’s constitutional authority to withhold consent to a Supreme Court nomination until the next president is sworn in. We must wait to see what the people say this November, and then our next president will put forward a nominee.”

I haven’t visited with Sen. Grassley this year. But I asked Sen. Ernst the question during her visit to Jefferson last week. Both are now members of the Senate Judiciary Committee.

It appears the Biden Rule no longer appeals to her.

Sen. Ernst offered several responses.

First, she said she didn’t want to discuss “hypotheticals,” such as a vacancy on the court when none had yet appeared in 2020. But that wasn’t my question. I wanted to know if she still subscribed to the Biden Rule. 

Didn’t get an answer to that one.

Second, she said she expected Judiciary Committee Chair Sen. Lindsey Graham would hold hearings on a Trump nominee to fill a vacancy if one should occur, and she would attend the hearings as a committee member.

But I hadn’t asked her if she would attend a hearing — I had asked her how she would handle the situation in light of the Biden Rule.

Third, she refused to say whether she would vote to confirm a nominee if she approved of him or her. 

I hadn’t wanted to know in advance how she would vote — I had asked her if she thought a vote of any kind would be appropriate in light of the Biden Rule.

Sen. Grassley may have an even tougher decision to make than Sen. Ernst.

In March 2016, when he was chair of the Senate Judiciary Committee, and after he had invoked the “Biden Rule” to withhold a hearing on Judge Garland’s nomination, he said he would do the same thing if a vacancy were to open up on the Supreme Court in 2020.

At that time, Grassley said he wouldn’t expect President Trump and Majority Leader McConnell to observe the Biden Rule in 2020. But he didn’t say what he himself would do about it if a nominee’s name were to be sent to the Senate. (Grassley continues to serve on the Senate Judiciary Committee, but no longer as chair.)

He’s right about McConnell, who said a few weeks ago that he indeed would proceed to help Trump fill such a vacancy if one occurred this year.

The Senate Judiciary Committee comprises 12 Republicans and 10 Democrats. So if Grassley and Ernst were true to their principles, they could join the 10 Democrats to reject any nominee’s name that Trump would send up to the committee.

It would be admirable if they did so. The other path is starkly naked politics.

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