Obama Warns Senate Republicans’ that Politicization of SCOTUS Confirmation Will Undermine Credibility of Court

President Obama has a right and a duty to nominate a replacement to Antonin Scalia on the Supreme Court and the Senate has a duty to hold hearings and take a vote. © 2016 Karen Rubin/news-photos-features.com
President Obama has a right and a duty to nominate a replacement to Antonin Scalia on the Supreme Court and the Senate has a duty to hold hearings and take a vote.
© 2016 Karen Rubin/news-photos-features.com

With the care and consideration of a Constitutional lawyer, President Obama laid out his argument for his authority and responsibility to nominate a Justice to fill the vacancy on the Supreme Court left by the death of Antonin Scalia, and the Senate’s obligation and responsibility to “advise” and hold a vote. 

He chastised – and warned – about the politicization of the process which ultimately undermines “the credibility” and the authority of the Supreme Court, itself, just as the ability of government to function has been undermined by extreme partisanship and polarization: 

“If, in fact, the Republicans in the Senate take a posture that defies the Constitution, defies logic, is not supported by tradition simply because of politics, then invariably what you’re going to see is a further deterioration in the ability of any President to make any judicial appointments,” President Obama said. “And appointments to the Supreme Court as well as the federal bench suddenly become a complete extension of our polarized politics…the credibility of the Court itself begins to diminish because it’s viewed simply as an extension of our politics.” 

Here’s the full transcript of Obama’s comments on the Supreme Court process. He spoke at length – about 10 minutes – in answer to a question at a press conference: 

PRESIDENT OBAMA:  Well, the Constitution says that I nominate candidates for the Supreme Court when there’s a vacancy, and that the Senate exercises its constitutional role in advise and consent.  I’m going to do my job.  We are going to go through a process, as we have done in two previous Supreme Court vacancies, to identify an outstanding candidate that has impeccable legal credentials and would bring the kind of ability and compassion and objectivity and legal reasoning to the Court that the Highest Court in the Land demands.

One side made the nomination, and then Leader McConnell and all the members of the Senate are going to make a decision about how do they fulfill their constitutional responsibilities.  I recognize the politics are hard for them, because the easier thing to do is to give in to the most extreme voices within their party and stand pat and do nothing.  But that’s not our job.  Our job is to fulfill our constitutional duties.

And so my hope and expectation is that once there is an actual nominee and once this is no longer an abstraction, that those on the Judiciary Committee recognize that their job is to give this person a hearing, to show the courtesy of meeting with them.  They are then free to vote whatever their conscience dictates as to whether this person is qualified or not.  In the meantime, the American people are going to have the ability to gauge whether the person I’ve nominated is well within the mainstream, is a good jurist, is somebody who’s worthy to sit on the Supreme Court.

And I think it will be very difficult for Mr. McConnell to explain how, if the public concludes that this person is very well qualified, that the Senate should stand in the way simply for political reasons.  We’ll see what happens.  And I think the situation may evolve over time.  I don’t expect Mitch McConnell to say that is the case today.  I don’t expect any member of the Republican caucus to stick their head out at the moment and say that.  But let’s see how the public responds to the nominee that we put forward.

The one thing I think is important to dispel is any notion that somehow this is some well-established tradition, or some constitutional principle that a President in his last year of office cannot fill the Supreme Court vacancy.  It’s not in the text of the Constitution.  Ironically, these are Republicans who say they believe in reading the text of the Constitution and focusing on the intent of the Constitution.  But none of the Founding Fathers thought that when it comes to the President carrying out his duties, he should do it for three years and then on the last year stop doing it.

There’s an argument that, well, the President shouldn’t do this because he is a lame duck.  Well, the truth of the matter is, is that traditionally the term “lame duck” refers to the two or three months after an election has taken place in which a new President is about to be sworn in.  I’ve got a year to go.  I don’t think they would approve of me abdicating on my duties as Commander-in-Chief and to stop doing all the other work that I got to do.  Well, this is part of my job. 

There’s been arguments that for 80 years this has been the tradition.  Well, that’s not the case.  Justice Kennedy was approved after being nominated by Ronald Reagan in Ronald Reagan’s last year of office.  They say, well, that’s different because he had been nominated in 1987, even if he was confirmed — or ’85 — even if he was confirmed in ’86.  Well, the notion that there is some two-month period in which suddenly it all flips and everything shuts down, that’s not a credible argument.

What other arguments are they making?  They suggest that, well, there had been a couple of times where Democrats said it would be wise for a President not to nominate someone.  First of all, we know senators say stuff all the time.  Second of all, these were comments that were made where there was no actual nomination at stake.  So it has no application to the actual situation that we have right now.

I’m trying to think of any other reeds that they’re grasping here as to why they would not carry out their duties.  And I can’t really think of one.

I recognize that this is an important issue for their constituencies, and it’s particularly sensitive because this was Justice Scalia’s seat that is now vacant and that a whole host of decisions on the Supreme Court could turn on this ninth justice and their vote.

But that’s how our democracy is supposed to work.  And what I do — the last point I’ll make — we have already seen a breakdown of the judicial appointment process that gets worse and worse each and every year, each and every Congress.  It becomes harder and harder to get any candidates for the judiciary confirmed.  We saw Senator Reid have to employ the so-called “nuclear option” because there was such a logjam in terms of getting judicial appointments through.

If, in fact, the Republicans in the Senate take a posture that defies the Constitution, defies logic, is not supported by tradition simply because of politics, then invariably what you’re going to see is a further deterioration in the ability of any President to make any judicial appointments.  And appointments to the Supreme Court as well as the federal bench suddenly become a complete extension of our polarized politics.

And at that point, not only are you going to see more and more vacancies and the court systems break down, but the credibility of the Court itself begins to diminish because it’s viewed simply as an extension of our politics — this is a Republican judge or this is a Democratic judge, as opposed to, this is a Supreme Court justice who is supposed to be standing above the day-to-day politics that take place.

So I understand the posture that they’re taking right now.  I get the politics of it.  I’m sure they’re under enormous pressure from their base and their constituencies around this issue.  I’ve talked to many of them, and I’ve told them I’m sympathetic.  And, by the way, there’s not a lot of vigor when they defend the position that they’re taking, that they wouldn’t even meet, for example, with a Supreme Court nominee.  They’re pretty sheepish about it when they make those comments.

So we’ll see how this plays itself out.  But I’m going to do my job.  I’m going to nominate somebody and let the American people decide as to whether that person is qualified.  And if they are qualified, let the American people decide whether there’s enough time for the U.S. Senate to hold hearings and have a vote.  It’s not as if, from what I see, the Senate calendar is so full that we don’t have time to get this done.

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