White House

Obama on Supreme Court: Do as I say, not as I did

President Barack Obama speaks about about new rules aimed at deterring tax inversions, Tuesday, April 5, 2016, in the briefing room of the White House in Washington.
President Barack Obama speaks about about new rules aimed at deterring tax inversions, Tuesday, April 5, 2016, in the briefing room of the White House in Washington. AP

As he visited his old law school Thursday to push his nomination of Merrick Garland to the Supreme Court, President Barack Obama had a bit of personal history that complicated his argument.

The onetime constitutional law teacher turned president is pushing Senate Republicans to hold hearings and vote on his nomination, arguing that it’s part of their job.

But when he was a senator, Obama and his Democratic colleagues attempted to block the nomination of President George W. Bush’s pick to the Supreme Court, Samuel Alito, using the technical procedure of a filibuster.

Obama’s critics accuse him of hypocrisy and are quick to point out that he now “laments the type of tactics over judicial nominees that were the hallmark of his tenure in the Senate.”

President Obama nominated Chief Judge Merrick Garland of the United States Court of Appeals for the District of Columbia Circuit to the U.S. Supreme Court. He called Garland "one of America's sharpest legal minds." Garland is Obama's pick to fill

“When it comes to nomination politics, there is plenty of hypocrisy to go around,” said Jack Pitney, a former Republican Party official who teaches political science at Claremont McKenna College. “When politicians talk about ‘procedural fairness,’ what they often mean is ‘a procedure that has the outcome that I want.’ ”

Obama, in his talk at the University of Chicago Law School, where he taught for a decade, warned against a process that is “so broken, so partisan” that it’s ushering the same kind of sharp partisan politics displayed in elections into the judicial system.

“It’s not just that the Republican majority in the Senate intend to vote against a highly qualified judge. We now have a situation where they’re saying, ‘We simply will not consider the nomination itself,’ ” Obama said. “We’re just going to shut down the process. That is unprecedented.”

Democrats and Republicans are engaged in what’s expected to be a nearly yearlong tug of war that includes TV ads targeting senators, partisans raising money off the conflict and opposition researchers digging for information.

Both sides in this deserve rebuke. A plague on both their houses; the one tit-for-tat is no more justifiable than the other. Alito deserved a vote of the whole body, and got it, no thanks to then-Sen. Obama, and Merrick Garland deserves a vote of the whole body as well.

Douglas W. Kmiec, Caruso Family Chair and Professor of Constitutional Law at Pepperdine University School of Law

Senate Majority Leader Mitch McConnell, R-Ky., said Thursday that Obama wrongly argues that the Constitution requires the Senate to have a vote on his nominee.

“He will try and convince Americans that, despite his own actions while in the Senate to deny a Supreme Court nominee a vote, the Constitution somehow now requires the Senate to have a vote on his nominee no matter what – and thereby deny the American people a voice in the future of the Supreme Court,” McConnell said on the Senate floor.

Legal and political experts say it’s possible – but not likely – that Republicans will hold pre-election confirmation hearings later this year if the public puts enough pressure on them to vote. Or lawmakers might decide to consider Garland after the November election if the presidential contest doesn’t turn out the way they want.

Thomas Keck, a professor of constitutional law and politics at Syracuse University’s Maxwell School of Citizenship and Public Affairs, said there’d been a steady escalation of polarized conflict over judicial nominations since President Ronald Reagan’s second term in the 1980s.

Those examples include Obama’s opposition to two nominees, Alito and John Roberts Jr., and widely reported 1992 comments by then-Sen. Joe Biden, who’s now the vice president, encouraging President George H.W. Bush not to make any Supreme Court nominations in an election year.

Barack Obama is the only U.S. president in history to have filibustered a Supreme Court justice

“Despite this long history, the Republican senators’ current tactics represent an escalation, in that they are refusing to hold hearings and most of them are refusing to even meet with the nominee,” Keck said.

In 2005, Obama voted against Roberts. He said in a DailyKos blog post that a filibuster would have been a “quixotic fight I would not have supported” and Democrats would have lost both in the Senate “and in the court of public opinion.”

In 2006, Obama did join a filibuster against Alito despite saying on the Senate floor that he had “no doubt that Judge Alito has the training and qualifications necessary to serve.” The unsuccessful maneuver came after every senator, including Obama and Biden, met with Alito and hearings were held.

Obama acknowledged Thursday that Democrats are not blameless and that they, too, have used the filibuster to block nominees.

But while he failed to mention that he’d used the same maneuver as a senator from Illinois, he did decry it as overused.

“What’s not acceptable is the increasing use of the filibuster for someone who is clearly within the mainstream,” he said.

White House Press Secretary Josh Earnest says Obama now regrets the filibuster, saying Democrats should have made a more effective public case about their objections.

Some Democrats engaged in a process of throwing sand in the gears of the confirmation process. And that's an approach that the president regrets.

White House Press Secretary Josh Earnest

Roger Pilon, vice president for legal affairs for the Cato Institute, a libertarian research group, said the fact that Obama’s opposition did not come in an election year, like this one, made the actions worse.

“It isn’t simply hypocritical, it’s worse,” Pilon said. “He did it during a non-presidential-election year and we haven’t had Republicans do that. The Democrats don’t have much ground to stand on.”

CORRECTION: An earlier version of this article was missing a first reference to George H.W. Bush, who was president when Joe Biden made his 1992 comments about Supreme Court nominations in an election year.

Lesley Clark: 202-383-6054, @lesleyclark