If you’ve been following the media coverage of Ruth Bader Ginsburg’s death, then you’ve heard a million times what Republicans like Sens. Mitch McConnell (R-KY) and Lindsey Graham (R-SC) said in 2016.
After the death of Justice Antonin Scalia, both the Senate majority leader from Kentucky and the South Carolina senator said a replacement should not be seated until after the presidential election.
But then-Vice President Joe Biden said otherwise at the time, declaring that the president had a “constitutional duty” to seat a justice on the high court when a vacancy arises.
“The president has the constitutional duty to nominate; the Senate has the constitutional obligation to provide advice and consent,” Biden wrote in a New York Times op-ed in 2016.
“It is written plainly in the Constitution that both presidents and senators swear an oath to uphold and defend,” he wrote. “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. 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.”
In a speech at Georgetown University, Biden also said: “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.”
Biden has made a 180-degree turn with the death of Ginsburg, writing on Twitter on Friday: “Let me be clear: The voters should pick a President, and that President should select a successor to Justice Ginsburg.”
The vice president was echoing the words of his boss, former president Barack Obama. After Scalia’s death, Obama declared that he had a duty to nominate a successor.
“The Constitution vests in the President the power to appoint judges to the Supreme Court. It’s a duty that I take seriously, and one that I will fulfill in the weeks ahead,” Obama wrote in 2016.
Obama said he was looking for a replacement with a “sterling record, deep respect for the judiciary’s role, an understanding of the way the world really works.”
“That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court. And as Senators prepare to fulfill their constitutional responsibility to consider the person I appoint, I hope they’ll move quickly to debate and then confirm this nominee so that the Court can continue to serve the American people at full strength,” Obama wrote.
But like Biden, Obama has flip-flopped on the issue — now that a Republican president is in office and the GOP controls the Senate.
“Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in,” he wrote in a statement.
A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment. The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle. As votes are already being cast in this election, Republican Senators are now called to apply that standard. The questions before the Court now and in the coming years — with decisions that will determine whether or not our economy is fair, our society is just, women are treated equally, our planet survives, and our democracy endures — are too consequential to future generations for courts to be filled through anything less than an unimpeachable process.
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