President Obama in a Tuesday press conference made his first effort to explain away his attempted 2006 filibuster of President Bush’s nomination of Samuel Alito to the Supreme Court, which has garnered renewed attention given the political battle over replacing deceased Justice Antonin Scalia.
First, Obama said that in effect, he was just playing politics when he tried to deny Alito an up or down vote. Second, he argued that Alito was confirmed in spite of his attempted obstruction. Both are absurd defenses. Let’s take them one by one.
“Look, I think what’s fair to say is that how judicial nominations have evolved over time is not historically the fault of any single party,” Obama said. “This has become just one more extension of politics. And there are times where folks are in the Senate and they’re thinking, as I just described, primarily about, is this going to cause me problems in a primary? Is this going to cause me problems with supporters of mine? And so people take strategic decisions. I understand that.”
So basically, what Obama is doing here is admitting that his opposition to Alito was purely political, coming at a time when he was clearly considering an eventual run for the presidency, which he would end up announcing about a year later. Yet, while admitting that as senator he was trying to position himself with his party’s base, President Obama is arguing that Republicans should be magnanimous now, defy those who put them in office and risk their political careers, so that he’ll have the opportunity to lurch the Supreme Court dramatically to the Left.
Then, Obama went on to say, “But what is also true is Justice Alito is on the bench right now. I think that, historically, if you look at it, regardless of what votes particular senators have taken, there’s been a basic consensus, a basic understanding, that the Supreme Court is different. And each caucus may decide who’s going to vote where and what but that basically you let the vote come up, and you make sure that a well-qualified candidate is able to join the bench, even if you don’t particularly agree with them. And my expectation is, is that the same should happen here.”
This is an absurd position. Imagine this hypothetical scenario under a future President Cruz. Congressional Democrats threaten to deny a debt ceiling increase unless he agrees to raise taxes. Cruz argues, sure, he may have wanted to use the debt ceiling as leverage in the past, but ultimately, the debt ceiling was raised because other Republicans supported raising it, so it doesn’t matter. How much credence would such an argument be given by the media?
It’s worth going back and looking at Obama’s justification for filibustering Alito at the time.
There are some who believe that the president, having won the election, should have complete authority to appoint his nominee and the Senate should only examine whether or not the justice is intellectually capable, and an all-around good guy. That once you get beyond intellect, and personal character, there should be no further question as to whether the judge should be confirmed.
I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I am deeply troubled.
I have no doubt that Judge Alito has the training and qualifications necessary to serve. As has been already stated, he has received the highest rating from the ABA, he is an intelligent man, and an accomplished jurist. There’s no indication that he is not a man of fine character. But when you look at his record, when it comes to his understating of the constitution, I found that in almost every case he consistently sides on behalf of the powerful against the powerless. On behalf of a strong government or corporation against upholding Americans’ individual rights and liberties.
In other words, Obama was arguing that Alito met all of the objective tests of readiness to serve as a justice, but he decided not just to oppose him – but to block a vote on him – purely because he disagreed with him ideologically.
An argument that has been made by liberals that was not been made by Obama in his Alito answer is that there’s a distinction between wanting to block a specific nominee and offering a blanket statement that no nominees from the president of an opposing party will be considered. This is true, but it’s only by happenstance that Democrats didn’t get to this point earlier.
It’s pretty clear from Obama’s statement that he was perfectly comfortable with blocking votes on appointees for purely political and ideological reasons. The only difference is that in 2006, Democrats didn’t control the Senate. When they took over the Senate in 2007, Sen. Chuck Schumer made clear that he didn’t think Democrats should confirm any Bush nominees to the Court. And had, say, Ruth Bader Ginsburg’s seat become vacant in February 2008, in the height of the Democratic presidential primary race, there is absolutely no way Obama would have supported fair consideration of Bush’s replacement. And Harry Reid’s position would have been indistinguishable from where Mitch McConnell’s is now.
The bottom line is that there isn’t any high principle here on either side. And this goes for Republicans trying to make the ad hoc argument against Supreme Court appointments during election years. We’re long past the point at which the default position is to give deference to the president on Supreme Court nominations, and that’s especially true in the case in which a vacancy could definitively swing control of a divided Court to one side. Given the power of the Supreme Court, the stakes are simply too high.
Americans elected Obama president in 2012, but they also elected a Republican Senate in 2014. Thus, Obama can appoint whomever he wants, and the Republican Senate can ignore his pick – until the voters break the logjam.
