Supreme Court fight has lawmakers doing somersaults

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Posted: Feb 23, 2016 3:23 AM
Supreme Court fight has lawmakers doing somersaults

WASHINGTON (AP) — Republicans in favor of putting off consideration of a Supreme Court nominee during an election year have focused on an unexpected ally: Joe Biden, circa 1992.

As Senate Judiciary Committee chairman more than two decades ago, the vice president argued that President George H.W. Bush should wait until after the November election to name a nominee — echoing the case Republicans now make against President Barack Obama's plan to try to fill the late Justice Antonin Scalia's seat.

Republicans on Monday gleefully circulated grainy video of Biden laying out his thoughts on the Senate floor. In the remarks, Biden said that a temporarily depleted court was small price to pay for avoiding a "bitter fight" that would assuredly damage the nominee, the Senate and the court, "no matter how good a person is nominated by the president."

Looking past the election, Biden urged Bush, if he were re-elected, to "consult and cooperate" with the Senate and "moderate" his selections.

Biden's plan was hypothetical, coming amid speculation that Justice Harry Blackmun was considering retiring in the coming weeks. And in a statement late Monday, he said any notion that he opposed filling Supreme Court vacancies in an election year "is not an accurate description of my views on the subject."

Still, it was more than enough to fuel the elaborate game of gotcha playing out in Washington.

The debate over judicial nominations is a study in role reversals. Depending on which party is in power, several major players in the current fight have staked out positions on both sides:

WHAT THEY SAID THEN:

"President Bush should consider following the practice of a majority of his predecessors and not — and not — name a nominee until after the November election is completed. ... Once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over."— Biden, June 1992.

WHAT THEY SAY NOW:

"Some critics say that one excerpt of my speech is evidence that I oppose filling a Supreme Court vacancy in an election year. This is not an accurate description of my views on the subject. In the same statement critics are pointing to today, I urged the Senate and White House to work together to overcome partisan differences to ensure the Court functions as the Founding Fathers intended. That remains my position today." — Biden, in a statement on Monday.

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THEN:

"The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president' term." — Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, in a forum in July 2008.

NOW:

"It only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court justice." — Grassley, in a statement after Scalia's death.

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THEN:

"We will institute the Thurmond Rule, yes." — former Judiciary Committee Chairman Patrick Leahy, D-Vt., at Georgetown University in December 2006. He was referring to the unofficial principle that judicial nominees shouldn't be confirmed in the lead-up to an election.

NOW:

"There is no such thing as the Thurmond Rule," Leahy on CNN the day after Scalia's death.

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THEN:

"Even with 'lame duck' presidents, there is an historical standard of fairness as to confirming judicial nominees — especially circuit court nominees." — Senate Minority Leader Mitch McConnell, R-Ky., on the Senate floor in July 2007.

NOW:

"The American people should have a voice in the selection of their next Supreme Court justice. This vacancy should not be filled until we have a new president." — McConnell, now majority leader, in a statement after Scalia's death.

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THEN:

"Nowhere in (the Constitution) does it say the Senate has a duty to give presidential appointees a vote. It says appointments shall be made with the advice and consent of the Senate. That is very different than saying every nominee receives a vote." — Senate Democratic leader Harry Reid, on the Senate floor in 2005.

NOW:

"Failing to fill this vacancy would be a shameful abdication of one of the Senate's most essential constitutional responsibilities." — Reid, in a statement after Scalia's death.

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THEN:

"Given the track record of this president and the experience of obfuscation at the hearings, with respect to the Supreme Court, at least, I will recommend to my colleagues that we should not confirm a Supreme Court nominee except in extraordinary circumstances." — Sen. Chuck Schumer, D-N.Y., in a 2007 speech.

NOW:

"Whether Republicans agree or not with my evaluation of whichever candidate the president puts forward, they have a constitutional obligation to hold hearings, conduct a full confirmation process and vote on the nominee based on his or her merits."— Schumer, in a blog post last week.

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THEN:

"There are some who believe that the president, having won the election, should have complete authority to appoint his nominee ... (and) there should be no further question as to whether the judge should be confirmed. I disagree with this view." — then-Sen. Barack Obama, in January 2006, the same year he joined a filibuster against Justice Samuel Alito's confirmation.

NOW:

"There's been a basic consensus, a basic understanding, that the Supreme Court is different. And each caucus may decide who's going to vote where and what but that basically you let the vote come up."— Obama, at a news conference last week.

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Reach Kathleen Hennessey on Twitter at http://twitter.com/khennessey and Josh Lederman at http://twitter.com/joshledermanAP