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Biden: Senate Shouldn't Take Up Supreme Court Vacancy Until After The Election

Democratic presidential nominee and former Vice President Joe Biden speaks to reporters about the passing of Supreme Court Justice Ruth Bader Ginsburg upon arrival at New Castle County Airport in Delaware.
Democratic presidential nominee and former Vice President Joe Biden speaks to reporters about the passing of Supreme Court Justice Ruth Bader Ginsburg upon arrival at New Castle County Airport in Delaware.

Updated at 12:15 a.m. ET

The Senate shouldn't take up the vacancy on the Supreme Court opened by the death of Justice Ruth Bader Ginsburg until after voters have expressed their choice in the election, former Vice President Joe Biden said Friday.

The Democratic presidential hopeful kept in lockstep with his colleagues now in the Senate minority, who wasted little time after the announcement of Ginsburg's death in stating their belief that Washington must wait.

Republicans do not agree.

Biden reflected Friday about his own long career in the Senate: "It's hard to believe it was my honor to preside over her confirmation hearing," he said.

Democrats want to mirror back the political position taken in 2016 by Senate Majority Leader Mitch McConnell, R-Ky., who responded to that year's vacancy on the high court by declaring that he would not take up the matter of a replacement until after the presidential election.

History records that Donald Trump was elected and sent McConnell his nominee in place of the one chosen by former President Barack Obama. The Senate then confirmed Neil Gorsuch, the first of Trump's choices.

McConnell said on Friday that he considers the situation this year different from the one in 2016 and that the Senate would consider Trump's third nominee comparatively soon. It isn't clear whether that might take place before Election Day or Inauguration Day, but the stage in Washington is set for an incendiary political war.

Sen. Ted Cruz, R-Texas — whom Trump had mused about potentially being a nominee himself to the Supreme Court — said on TV Friday that he believed Trump should identify his nominee as soon as next week.

Obama echoed Biden's position a bit more forcefully in a post, writing:

When Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn't fill an open seat on the Supreme Court before a new president was sworn in.

A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what's convenient or advantageous in the moment.

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