A Final word on the “Biden Rule,” by Vice President Joe Biden, and GOP wants another Judge Bork!!

Context, that’s what it’s all about.

"So now I hear all this talk about the ‘Biden Rule,’” the vice president said at the Georgetown University Law Center. “It’s frankly ridiculous. There is no 'Biden Rule.' It doesn’t exist.”

He a while to come out and correct Republicans, but Biden finally found the time.

He said there is “only one rule I ever followed on the Judiciary Committee, that was the Constitution’s clear rule of advice and consent.”

Biden defended his record during his years as chairman of the Senate Judiciary Committee, painting Republicans’ Supreme Court blockade as a desperate gambit that “could lead to a genuine constitutional crisis.”

During his time as chairman or ranking member of the Judiciary panel, Biden said, all eight high court nominees received a hearing and a floor vote. 

“Every nominee, including Justice [Anthony] Kennedy — in an election year— got an up-or-down vote,” he said. “Not much of the time. Not most of the time. Every single time.”

Leaving a seat vacant creates the possibility of a 4-4 tie in consequential cases, which leaves a lower court’s decision in place. That could result in a “patchwork Constitution” where laws are unevenly applied throughout the country, Biden said, and in turn “deepen the gulf between the haves and have-nots. The meaning and extent of your federal constitutional rights — freedom of speech, freedom to follow the teachings of your faith or to determine what constitutes teaching of your faith, the right to be free from unreasonable search and seizure — all could depend on where you happen to live,” he said. I think most people in this country would call that unfair and unacceptable.”

For comparison, I thought it would be interesting to take a look at what's behind the Republican resentment toward Democratic nominees for the Supreme Court. For Republicans, Judge Robert Bork was the best justice they never had, thanks to the Democrats.

As Franken and Sen. Patrick Leahy (D-VT) swiftly pointed out, Bork, whose nomination to the Supreme Court was rejected by a bipartisan 58-42 vote in 1987, received both a vote and a hearing. Nevertheless, Hatch maintained that this vote was a turning point in the politics of Supreme Court nominations. Bork, Hatch claimed, was “one of the greatest legal minds we’ve had,” and Bork’s rejection was the beginning of the cycle of escalating efforts by both parties to keep the other party’s nominees off the Supreme Court, according to Hatch.

What was churning around in that conservative activist legal mind? 

Hatch does have a point. Republicans have long viewed Bork as a fallen martyr,
Judge Bork’s opponents made a weighty case against his nomination in 1987 ... Bork had a long history of criticizing progressive Supreme Court decisions. Bork opposed the doctrine of one person/one vote, which eliminated malapportionment of state legislatures that gave rural votes far more representation than urban voters. He criticized decisions striking down racial covenants in housing and those banning voter literacy tests. He attacked a decision invalidating poll taxes. And he opposed Supreme Court decisions saying that the Constitution forbids the government from discriminating against women — arguing instead that “the Equal Protection Clause probably should be kept to things like race and ethnicity.”

Yes, what a great legal mind?

Bork’s most well-known statement, however, most likely came from a 1963 article he published in the New Republic, which opposed federal bans on race discrimination by businesses. The principle behind such laws, Bork argued, “is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.” (Bork later repudiated this statement — although he did not repudiate many of his other previously expressed views.)