Ignoring his attempted filibuster of a Supreme Court nominee a decade ago, President Obama lectured Republicans Thursday about the unfairness of blocking his nomination of Judge Merrick Garland to the high court, and warned that Democrats could get payback by refusing to confirm a Republican president’s nominees for an entire four-year term.
Returning to the University of Chicago Law School where he once lectured in constitutional law, Mr. Obama also boasted that he has “transformed” the federal judiciary by appointing record numbers of minorities, even as he sought to reassure critics that Judge Garland is a mainstream nominee.
Mr. Obama said Senate Republicans’ refusal to hold hearings or to meet with Judge Garland is “not acceptable.”
“What’s not acceptable, I believe, is the increasing use of the filibuster for somebody who’s clearly within the mainstream,” Mr. Obama said. “Or to essentially say we are going to nullify the ability of a president who is from another party from making an appointment.”
The president never mentioned his attempted filibuster as a senator in 2005 of Justice Samuel Alito, President George W. Bush’s nominee for the high court. Mr. Obama acknowledged “there have been times when Democrats used the filibuster,” but said Republican appointees to the Supreme Court have never been denied a hearing or a vote.
Conservatives accused Mr. Obama of hypocrisy.
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“President Obama is the first president to have filibustered a Supreme Court nominee, and he did so on the basis that he believes justices should decide the most difficult cases according to their personal political preferences,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network. “Now, at the end of a failed and extremely divisive presidency, he is apparently willing to say and do anything to create the most liberal Supreme Court majority in decades.”
Senate Majority Leader Mitch McConnell warned Americans not to fall for the president’s characterization of Judge Garland as a “moderate.” He said the president is trying to fool the public.
“It’s just a useful piece of spin that’s been dutifully echoed across the expanse of the left and in the media for years,” Mr. McConnell said on the Senate floor.
Judge Garland, 63, chief judge of the Court of Appeals for the District of Columbia, is indeed being hailed by the president and his supporters as a centrist. The nominee has Republican backers as well.
Mr. McConnell, Kentucky Republican, and all the Republicans on the Senate Judiciary Committee have vowed not to hold a confirmation hearing for Judge Garland, who would replace the late conservative Justice Antonin Scalia. They say voters should determine the course of the evenly divided court by electing a new president to choose a nominee.
The president asked an audience of law school students and faculty to “play out how much of a problem this could end up being, if in fact Mitch McConnell sticks to not giving a hearing and not giving a vote” to Judge Garland, and then a Republican wins the presidency.
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“The notion that Democrats would then say, ’Oh well, we’ll just go along with that,’ that is inconceivable,” Mr. Obama said. “Now the Democrats say what’s good for the goose is good for the gander, we’ll wait four more years to see how the next president comes in.”
He predicted in that scenario, “Mitch McConnell will then eliminate the filibuster possibility for Supreme Court justices as was eliminated for the other judicial appointments.”
“If different parties control the White House and the Senate during that period of time, you’re not going to get any appointments done,” Mr. Obama said, calling it “a disaster for the courts generally.”
Asked by a student how Judge Garland, a white male, improves the diversity of the judiciary, Mr. Obama replied, “Yeah, he’s a white guy, but he’s a really outstanding jurist, sorry.”
Mr. Obama defended his record of judicial appointments, which includes at least 117 minority judges in seven-plus years, more than any other president.
“Not to brag, but I have transformed the federal courts from a diversity standpoint with a record that’s been unmatched,” Mr. Obama said. “We’ve got more African-Americans on the circuit courts than we ever had before. I’ve appointed more African-American women to the federal courts than any other president before. I’ve appointed more Latinos than any president before. I’ve appointed more Native Americans, more Asian-Americans, more LGBT judges than ever before. But at no point did I say … ’I need a black lesbian from Skokie in that slot.’ That’s just not how I’ve approached it.”
The president said he has “a very progressive view of how the courts should operate” only in situations where democracy has “broken down,” such as the era of segregation. Otherwise, he said, it’s “rare” that the Supreme Court “engages in massive social engineering.” “They don’t have taxing power,” he said. “I do have a modesty in terms of my expectations for what the court should do.”
Mr. McConnell said the previous Supreme Court nominees of Mr. Obama and President Bill Clinton have all been portrayed as moderates, although their records prove otherwise.
While he didn’t mention them by name, Mr. McConnell was referring to Justices Sonia Sotomayor and Elena Kagan, both nominated by Mr. Obama, and Justices Ruth Bader Ginsburg and Stephen Breyer, tapped by Mr. Clinton. He said newspapers such as the Washington Post and New York Times hailed them as “moderate” or “pragmatic centrist” during their confirmations.
“The records of every one of these Supreme Court Justices have been anything but moderate or centrist in the years since — they’ve been resolutely left wing,” Mr. McConnell said. “But that’s the point. ’Moderate’ isn’t actually a true descriptor for Democratic Supreme Court nominees, it’s just burned into the printing presses of editorial boards.”
He said liberals understand what’s at stake with the Garland nomination.
“They don’t want the American people messing this up for them,” Mr. McConnell said on the Senate floor. “And they’ll say what they always say to get what they want today: a far-left Supreme Court for decades to come.”
• Dave Boyer can be reached at dboyer@washingtontimes.com.
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