On Whether the ‘Biden Rule’ Has a Future

The Story:

Here is a hypothetical but not especially remote question: if a Supreme Court Justice retires in January 2020, will the seat be held vacant throughout the year in the same way that the seat of the late Antonin Scalia was held vacant throughout 2016, awaiting the outcome of the Presidential election? If the Republicans still control the Senate at the time, will they follow what, in the last cycle, they reverentially called the “Biden rule”?


In 1992, Senator Joe Biden (D-DE) said that if there were to be a vacancy on the Supreme Court over the summer, President George H.W. Bush should refrain from nominating a new Justice, but should wait until after the November election. The speech received little attention at the time, but the Republican leadership in the US Senate in 2016 rediscovered it and dubbed it the “Biden rule” in 2016.

Compliance with that rule became the key justification for the Senate’s refusal to consider President Obama’s nomination of Judge Merrick Garland for a Supreme Court post during the presidential campaign that led to the election of Donald Trump.

The Thing to Know:

The Republican leadership’s devotion to the Biden rule seems to have slipped. Asked point-blank whether a vacancy on the Court in 2020 would be left open through the election, Majority Leader Mitch McConnell would say only, “We will see.”

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