Joe Biden said in 2016 that it is a president’s ‘constitutional duty’ to fill a SCOTUS seat

Joe Biden is accused of hypocrisy after a 2016 op-ed emerged in which he slammed Republicans for holding up a Supreme Court appointment, stating that it is the ‘constitutional duty’ of a president to nominate if a vacancy becomes available.  

He made the comments in a March 2016 op-ed with the New York Times, in which he added that he was ‘surprised and saddened’ to hear Republican senators say they would not longer accept a nomination because it was an election year.  

His words resurfaced this week after he blasted President Donald Trump for moving to nominate a candidate to fill the vacancy left by the death of Justice Ruth Bader Ginsburg on Friday. 

Biden claimed that the nomination should wait until after the election in 44 days. 

Trump hit back at Biden Saturday night, calling on the former Vice President to release his own list of potential Supreme Court picks and accusing him of being afraid to alienate voters by releasing the names ahead of November 3. 

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On Friday, shortly after Ginsburg’s death as the political battle about her replacement began, Biden tweeted his opposition to Trump attempting to push through a nominee in the next 40-plus days. 

‘Let me be clear: The voters should pick a President, and that President should select a successor to Justice Ginsburg,’ he wrote. 

Yet on numerous occasions in 2016, he hit out at Republicans for saying the same. 

‘The president has the constitutional duty to nominate; the Senate has the constitutional obligation to provide advice and consent,’ he wrote in the Time op-ed on the subject. 

‘It is written plainly in the Constitution that both presidents and senators swear an oath to uphold and defend.’ 

‘That’s why I was so surprised and saddened to see Republican leaders tell President Obama and me that they would not even consider a Supreme Court nominee this year,’ he added. 

‘No meetings. No hearings. No votes. Nothing. It is an unprecedented act of obstruction. And it risks a stain on the legacy of all those complicit in carrying out this plan.’

At the time, Republican senators had refused to move forward with the vetting process for Obama’s nomination to replace Justice Antonin Scalia. 

His death on February 13, 2016, opened up a vacancy to which Obama nominated Merrick Garland. 

Garland was never confirmed and Trump’s pick Neil Gorsuch was appointed to the court. 

Biden has previously said that if a vacancy opens before summer in an election year, he believes the president has the green light to pick nominees. 

In the last few weeks before voters head to the polls, however, he thinks they should be held off. 

This has often been called the ‘Biden Rule’ after the then-Senator made a 1992 speech encouraging a Supreme Court vacancy to be pushed post-election.   

After rumors surfaced in mid-June that a Justice was soon to retire, Biden claimed it ‘would create immense political acrimony’ to nominate too close to the election. 

‘So I called on the president to wait until after the election to submit a nomination if a sitting justice were to create a vacancy by retiring before November,’ he wrote.

‘And if the president declined to do that, I recommended that the Judiciary Committee not hold hearings “until after the political campaign season is over.” 

‘I know there is an argument that no nominee should be voted on in the last year of a presidency. But there is nothing in the Constitution — or our history — to support this view,’ Biden continued. 

‘Justice Anthony M. Kennedy was confirmed in the last year of Ronald Reagan’s second term. I know. I was chairman of the Judiciary Committee at the time.

‘And we promptly gave him a hearing, a vote in committee and a full vote on the floor.’

In another 2016 speech broadcast by PBS, Biden made his position on moving forward with a nomination in an election year clear. 

‘I would go forward with a confirmation process as chairman, even a few months before a presidential election, if the nominee were chosen with the advice, and not merely the consent, of the Senate, just as the Constitution requires,’ he said. 

‘My consistent advice to president’s of both parties, including this president [Obama] has been that we should engage fully in the constitutional process of advice and consent. 

‘And my consistent understanding of the constitution has been, the Senate must do so as well. Period. They have an obligation to do so.’ 

Despite Biden and Democrats arguments, Trump claimed at a rally in North Carolina on Saturday night that there was still enough time to effectively vet a nominee in the 44 days left before the election. 

He also slammed Biden for refusing to release his own list of potential nominees, claiming that the former Vice President did not want to run the risk of losing far-left voters if his list was too moderate and vice versa.

Trump claimed that if Biden released a list of names too moderate, he would lose ‘the entire East Coast’ and lose the election. 

Earlier on Saturday, White House press secretary Kayleigh McEnany told Fox News that Biden needed to release his list to help voters to make up their minds. 

‘The former vice president, in all due respect, instead of telling the current president what to do, he needs to tell voters where he stands,’ McEnany said.  

‘We don’t know who is on his Supreme Court list. We don’t know what kind of justices he would nominate. 

‘We know very squarely this president’s been very transparent putting forward two lists as to exactly not just what his justices would look like but what their names would be,’ McEnany said of Trump’s picks. 

‘This is paramount importance to the American voters,’ she added.  

‘This is now a lynchpin issue of this election and Joe Biden, you know, where do you stand? What do your justices look like? Do they believe in the Constitution and abide by the Constitution. Do they believe in the plain words a statute? He needs to answer those questions before telling President Trump exactly how to move forward.’

Biden has said he does not want to release any names until they’ve been properly vetted but he will chose an African American woman.  

Ginsburg’s death seemed certain to stoke enthusiasm in both political parties as the election could now be viewed as referendum on the high court’s decisions, including the future of abortion rights. 

Democrats raised more than $71 million in the hours after Ginsburg’s death, indicating her passing has already galvanized the party’s base. 

Typically, it takes several months to vet and hold hearings on a Supreme Court nominee, and time is short before November. 

Key senators may be reluctant to cast votes so close to the election, even if Trump nominates.  

With a slim GOP majority, 53 seats in the 100-member chamber, Trump’s choice could afford to lose only a few.

Senate Majority leader Mitch McConnell, who sets the calendar in the Senate and has made judicial appointments his priority, declared unequivocally in a statement that Trump’s nominee would receive a confirmation vote. 

In 2016, McConnell refused to consider President Barack Obama´s nominee months before the election, eventually preventing a vote on Judge Merrick Garland. 

McConnell did not specify the timing if a Trump nomination is made next week. 

But trying for confirmation in a lame-duck session after the November 3 election, if Trump had lost to Biden or Republicans had lost the Senate, would carry further political complications.

Democrats immediately denounced McConnell’s move as hypocritical, pointing out that he refused to call hearings for Garland 237 days before the 2016 election. 

The 2020 election is 44 days away.

The average number of days to confirm a justice, according to the Congressional Research Service, is 69, which would be after the election. 

But some Republicans quickly noted that Ginsburg was confirmed in just 42 days. 

Obama waited more than a month to nominate Garland after Justice Antonin Scalia died in February 2016.

Four GOP defections could defeat a nomination, while a tie vote could be broken by Vice President Mike Pence. 

The next pick could shape important decisions beyond abortion rights, including any legal challenges that may stem from the 2020 election. 

In the interim, if the court were to take cases with eight justices, 4-4 ties would revert the decision to a lower court; for instance, the Affordable Care Act could then be struck down by a lower Texas court.