Biden on SCOTUS Vacancy: McConnell Is ‘Trying to Get out Ahead of Ted Cruz’
MADDOW: “In the Senate, you ran confirmation hearings for, I think, five different Supreme Court nominees?”
BIDEN: “I think eight — I don’t know, but they —“
MADDOW: “At least five.”
BIDEN: “— they — they — they tell me other than Jim Eastland, I presided over more Supreme Court nominees than anybody in history.”
MADDOW: “You didn’t vote for all the nominees at these hearings —“
BIDEN: “I didn’t.”
MADDOW: .”— you oversaw, but you convened those hearings. They all went to the floor for a vote. Why do you think Republicans are now saying that President Obama shouldn’t even nominate someone to fill Justice Scalia’s seat?”
BIDEN: “[Excuse] my words here. I think because they’re intimidated by — by the dominant element of the Republican Party, the national politics right now, the far right. I think they’re intimidated by it. I think it’s the tail wagging the dog. And I think the leadership went out to make sure they got out ahead of Ted Cruz. I don’t believe in their heart they think this makes sense. We’ve never done this before. It’s — keep in mind, Rachel, if we don’t start — if we don’t nominate someone in the next month or so, start the hearing process, and they say nothing’s going to happen until the next election, it won’t be until next June or July before you have a Supreme Court justice. We have a dysfunctional Congress now. We don’t need an institutionally dysfunctional Supreme Court.”
MADDOW: “If we have a vacancy on the Supreme Court for a year, for 18 months, is that a constitutional crisis? Or is that a political problem of a different order?”
BIDEN: “Well, I think it is a political problem of a different order because you’re not going to get resolution, potentially, on serious issues that require resolution. For example, you know, it’s interesting how — how back when Warren was deciding Brown vs. the Board, he had the votes, but he wouldn’t actually bring — bring the decision up until he had one southerner who would support it, because he knew that if it was — if every southerner on the bench was against it, it would be viewed as a north-south, and it would legitimize people in the south saying we’re not going to participate in this.' There — there is a — the court is not just made up of individuals. It’s a body. It’s an organic organization. And — and to have it as, you know — that’s why it’s an uneven number. That’s why there’s nine. And there are so many important decisions that have to be resolved that affect us internationally and nationally that I don’t think it’s responsible at all. And by the way, you know, this idea of — I remember George Mitchell — I was doing the Clarence Thomas hearing, and there were 48 senators declared they were not prepared to vote for him at the front end. We could have filibustered that and stopped it. George and I — George was the leader at the time — took the heat from every liberal group saying, “No, no, that’s not the way the system is supposed to work, since the Constitution — the president shall propose and the Constitution shall dispose, we’re going to let them hear this.”
MADDOW: “Even though you knew — you thought it would be no — or it seemed clear that it might be no, you wanted to let the process go forward —“
BIDEN: “Yes, because — because that’s what the Constitution called for. And by the way, Bork only got — excuse me — Thomas only got 48 votes. And you know, that’s — that’s filibuster-proof. You need 60 votes to break it. So we could have easily — not easily — could have stopped him from, you know, being on the court. But it would — it was a — it was a prostitution of the Constitution. That’s not how it’s supposed to work. And the system matters. It matters a lot. Procedure matters."
MADDOW: “Do you have faith that this is going to happen the way that you’re describing it should? Do you think that there is going to be a —“ [crosstalk]
BIDEN: “I have — I have faith that the president — and he’s asked me to advise him, as I have on the last two — is going to appoint someone who is qualified. By qualified, meaning that they have the intellectual capacity. They have the judicial temperament. They have no crimes of moral turpitude. They are someone who will actually have an open mind and listen on the court. I think we ought to be able to find a consensus candidate that meets that criteria. Because the Senate does have a right to have a say in who — and what the philosophy of the nominee is. But they only get to dispose. The president proposes. I’ll tell you a quick story. When Bork was defeated, then Ginsberg pulled out, I was chairman. And Ronald Reagan called me down to the Oval Office. And Howard Baker was then his chief of staff. So the three of us sat in the Oval. And he sat down. He was gregarious. And he said, 'OK, Joe, who do you want?' And I said, 'Mr. President,' I said, 'Yours is to propose, mine to dispose.' I said, “You tell me who you have in mind, I’ll give you an honest answer what their chances are in my view. He then read off to me the potential nominees he had in mind. And with Howard there, I told him, 'Mr. President, I think that that person will have — suffer the same fate as Bork; this person I think would probably get nominated; that person would.' And you know, that’s part of the advise and consent process.”
MADDOW: "Should President Obama do that [indecipherable]?"
MADDOW: "Do you think he will?"
BIDEN: "Yes. I am confident he will reach out to the Senate and go through the process of advise and consent."