EDITORIAL: On Supreme Court, Biden is to blame

It took mere minutes after the recent passing of U.S. Supreme Court Justice Antonin Scalia for debate to begin to rage concerning his replacement. Democrats, including Vice President Joe Biden, have been very vocal in their argument that Senate Republicans should humbly bow and let President Barack Obama nominate someone to fill the vacancy, thus creating a liberal majority on the court. Republicans would prefer that the next president — hopefully from the GOP — pick someone who mirrors Justice Scalia instead.

Among the many pieces of ammunition Republicans have used to make their case is a 1992 speech then-Sen. Biden made on the floor of the U.S. Senate, during which he implored President George H.W. Bush to wait until the next presidential election before nominating someone, should any vacancies open on the court. In a recent rebuttal published in the New York Times, Mr. Biden says Republicans are distorting the “broader meaning” of that speech. However, in a recent piece in Commentary magazine, Jonathan S. Tobin rightly rebuts that rebuttal.

As Mr. Tobin points out, it was Mr. Biden who was arguably most responsible for bringing the nomination process to this partisan point in the first place — and not because of his 1992 diatribe, but rather due to his efforts to squelch the nomination of Robert Bork in 1987, turning the name “Bork” into a verb in the process.

Judge Bork was nominated in July 1987 by President Ronald Reagan to replace the retiring Lewis Powell. Before the nomination, Biden had repeatedly said that, barring any qualification or ethics issues, he would have no problem confirming a conservative to the court, regardless of any criticism he received from liberal groups. But when those same groups protested the nomination of the conservative Mr. Bork, Sen. Biden — then the head of the Judiciary Committee in a Senate that had just swung to the Democrats — flip-flopped, joining Ted Kennedy and other Democrats in an unjustified smear campaign of Bork that blocked his nomination, ruined his name and, as Mr. Tobin contends, broke the court.

So, Mr. Biden set the standard in 1987 and re-affirmed it in 1992. (Sen. Chuck Schumer took a similarly hypocritical stance in 2007.) If circumstances were reversed — for example, a GOP president and Democratic Congress considering a replacement for Justice Ruth Bader Ginsburg — would this play out any differently? Of course not. The election should decide which party gets to appoint the next Supreme Court justice. The Republicans’ strategy is not without risk. If Hillary Clinton wins, they could end up with a justice even further to the left than what they might get today.

Regardless, as Mr. Tobin states, Republicans are fully justified in standing their ground on this opening. Don’t blame the GOP for the wait. Joe Biden wrote the playbook. Republicans are simply taking the position that he and other Democrats took years ago.