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Vice President Biden Speaks at Georgetown Law

March 24, 2016 — “The longer this High Court vacancy remains unfilled,” said U.S. Vice President Joe Biden, “the more serious a problem we will face — a problem compounded by turbulence, confusion and uncertainty about our safety and security, our liberty and privacy, the future of our children and grandchildren. In times like these, we need more than ever a fully functioning Court.”

Speaking from Georgetown Law’s Scott K. Ginsburg Sport & Fitness Center on March 24, the vice president urged the U.S. Senate to “engage fully in the constitutional process of advice and consent” and to consider the Supreme Court nomination of Merrick B. Garland, currently the chief judge of the Court of Appeals for the District of Columbia Circuit. On March 16, President Barack Obama nominated Garland to the Supreme Court to replace Justice Antonin Scalia, who died on February 13.

Biden noted that some on Capitol Hill have refused to consider Garland’s nomination, asking whether a so-called “Biden rule”— based on remarks Biden made as chairman of the Judiciary Committee in 1992 — means that the Senate need not fill a vacancy on the Court during an election year. 

Biden said he was “speaking of the dangers of nominating an extreme candidate without proper Senate consultation. … I made it absolutely clear that I would go forward with the confirmation process even a few months before a presidential election if a nominee were chosen with the advice — and not merely the consent — of the Senate, just as the Constitution requires.”

The “one rule” he was following, Biden said, was the Constitution’s clear rule of advice and consent. “The president shall — not may… shall appoint someone to fill the vacancy with the advice and consent of the United States Senate.” 

“Voting no” is always an option, Biden continued, “but saying nothing, seeing nothing, reading nothing, hearing nothing and deciding in advance simply to turn your back … is not an option the Constitution leaves open. It’s a plain abdication of the Senate’s solemn constitutional duty.”

With only eight justices, the Court may be unable to resolve “significant legal issues,” Biden noted. And if pressing national conflicts are allowed to linger in the lower courts, important constitutional rights may depend upon where someone lives. “We must make sure that a fully functioning Supreme Court is in a position to address these significant issues, and that geographic happenstance cannot fragment our national unity.” 

Georgetown Law Professor Victoria Nourse, formerly a senior adviser to Biden, introduced the vice president. And Biden concluded his remarks by urging students to “go back to class and challenge” his words — to determine for themselves what is right or wrong. “Make your voices heard,” he said. 

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