Grassley’s Principled Stand on the Supreme Court Follows Decades of Precedent, Bipartisan Consensus
The Senate has an understanding, often called the “Biden Rule,” named after then-Judiciary Committee Chairman Joe Biden, that the people deserve a voice in nominating Supreme Court justices in presidential election years.
- In June 1992, Biden explained that the next President should fill any vacancy arising during a presidential election year at the end of a president’s term. Proceeding on a nomination during a hyper-political election year would be bad for the Court, the country, the Senate and the nominee. As he said, “[c]an you imagine dropping a nominee…into that fight, into that cauldron in the middle of a presidential year?”
- Then-Chairman Biden said this because history teaches it’s a bad idea. The last time the Senate confirmed a new Justice to fill a vacancy arising in an election year under divided government was 1888.
- Before that, the Senate on a number of occasions opted to exercise its constitutional check on the President’s power to nominate a new Justice. For example:
- In 1844, President Tyler nominated two separate candidates to fill Justice Baldwin’s seat after it became vacant that election year. The Senate took no action on the nominations and President Polk filled the seat after his inauguration.
- In 1852, President Fillmore made three nominations to fill the seat vacated by Justice McKinley during that election year. The Senate took no action on the nominations and President Pierce filled the seat after his inauguration.
- In 1968, President Johnson withdrew the nomination of Justice Fortas to become Chief Justice after Chief Justice Warren had announced his intent to retire that election year. Within a day of Chief Justice Warren’s announcement, 19 Republican Senators declared that they thought the next President should nominate the next Chief Justice. Because Democrats controlled the Senate, these Republican Senators could not prevent a hearing from taking place on President Johnson’s nominee. But when it became clear the nomination would fail, President Johnson was forced to withdraw his proposal.
- A Washington Post analysis of the Democrats’ commonly used myth, “the Senate isn’t doing its job,” garnered “three Pinocchios,” from the newspaper’s Fact Checker saying, “Nearly 200 years ago, the Senate made it clear that it was not required to act on a Supreme Court nomination.”
The Supreme Court is able to function with eight justices. Historically, the Supreme Court has had a differing number of justices – anywhere from six to ten – as the number is set by Congress. Because cases can be resolved, rescheduled and reargued at later dates, temporarily having eight justices does not prevent the Supreme Court from functioning. And, Justices Breyer and Alito have said that the court will do its work.