Commotion: The Biden Rule
The Claim
The "Biden Rule" has an effect on the appointment of the next Supreme Court Justice.
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Emerging story
Following Justice Ruth Bader Ginsburg's passing on September 18, 2020, users on social media began discussion the implications – and existence – of the Biden Rule.
Misbar’s Analysis
With the passing of Supreme Court Justice Ruth Bader Ginsberg, a new successor will be nominated to replace her. Normally, the president would be able to choose whomever they wish without much controversy. However, it’s different this time: It’s an election year.
In 2016, Supreme Court Justice Antonin Scalia died. President Barack Obama nominated Merrick Garland to fill the vacancy. Senate Republicans – including Mitch McConnell – objected, citing the “Biden Rule.”
The Biden Rule comes from a speech in 1991. In the speech, Joe Biden advocated for postponing the nomination until after election year.
Specifically, he said that it should take effect if the senate and the White House are held by opposing political parties. Mitch McConnell is trying to bypass the Biden Rule he previously enforced. This has some far-reaching consequences, as it gives more weight to presidential elections and, should McConnell succeed, will give the senate more influence over the supreme court.
Some believe that the Biden Rule should not apply today.
It’s worth noting that the Biden Rule isn’t a law. There’s no legal justification for delaying the process. It’s not in the constitution, nor is there any law that supports it. Without the 2016 precedent, there many not be the current dispute.
