Biden on lack of vote for Supreme Court nominee: Republicans are acting against Constitution

WASHINGTON - It has been three months since Supreme Court Justice Antonin Scalia died leaving a vacancy on the highest court in the land. The White House is increasing pressure on Republicans to give their nominee a chance and the court a deciding vote. Now, a new poll shows Americans overwhelmingly support a hearing and vote on Merrick Garland's nomination.

FOX 5 sat down with Vice President Joe Biden for an exclusive interview to discuss several issues including this one.

Garland is President Barack Obama's pick to fill the Supreme Court vacancy. The announcement was made on March 16 at the Rose Garden of the White House. Since then? The Republican-controlled Senate has taken no action to pursue confirmation hearings.

Biden, once the chairman of the Senate Judiciary Committee, said Republicans are not doing their job.

"You don't have to vote for Merrick Garland," Biden said. "You have a responsibility to have a vote."

But Senate Republicans say they don't have to, citing what they now call the "Biden Rule" - Biden's own words he said in 1992 when he was chairman of the Senate Judiciary Committee and George H.W. Bush was president.

Biden said back then, "It's my view that if a Supreme Court justice resigns tomorrow or within the next several weeks or resigns at the end of the summer, President Bush should consider following the practice of the majority of his predecessors in not naming a nominee until after the November election is completed."

We asked Biden why should Republicans in this case act or feel any differently.

"That is not what I said. I said unless he is going to consult, and I went on to say that he should send someone up," Biden told us.

If you listen to his entire statement back in 1992, Biden goes on to say that if a president "presses an election year nomination ... The Senate Judiciary Committee should consider not scheduling confirmation hearings until after the campaign season is over."

"I've presided over more Supreme Court nominees than anyone living," Biden said to FOX 5. "Every single one got a hearing. Every single one got a vote in the committee. Every one of them got a vote on the floor of the United States Senate and they did it in presidential election years. So that's the Biden rule. It's called the Constitution."

Valerie Jarrett, senior advisor to President Obama, said the president has fulfilled his constitutional responsibility. It is time for Republicans to fulfill theirs.

"For the Republicans to take this unprecedented stand over this issue sets up a slippery slope for what is next," she said. "The fact that on the evening that Justice Scalia passed away, [Senate Majority] Leader [Mitch] McConnell said that there would not be a hearing no matter who the president nominated because he wanted the people to weigh in is ridiculous."

Don Stewart, deputy chief of staff to Sen. McConnell (R-Ky.) said, "The White House is now dropping all pretense that this is about anything other than a campaign issue. The problem for them, of course, is that despite coordinating millions of dollars in special interest ads, none of our members have been moved from their principled positions."

The bottom line when it comes to Biden's statement in 1992 - there was no Supreme Court vacancy to fill, there was no nominee to consider and the Senate never voted to adopt a rule to delay hearings until after the election.

According to SCOTUSblog, no president in the past century has had a Supreme Court nominee go unconfirmed on the grounds that it was an election year.

The vice president said Republicans are acting against the Constitution and it is affecting the highest court. Since Scalia's death, the justices have deadlocked 4-4 on three cases so far.