Obama Says Court Dispute Threatens Deadlock Over Justices

Obama

President Barack Obama speaks at the University of Chicago on April 7, 2016.

Photographer: Joshua Lott/Getty Images
  • Senate increasingly blocks judicial nominations, Obama says
  • Vacancy on highest court could extend two years, he says

President Barack Obama predicted that obstruction of his Supreme Court nominee by Senate Republicans would lead to Democrats blocking future Republican judicial appointments, a tit-for-tat that would precipitate a governing crisis and diminished public faith in the legal system.

QuickTake Supreme Court

During remarks at the University of Chicago’s law school on Thursday, Obama gamed out his dispute with Senate Majority Leader Mitch McConnell over the nomination of Merrick Garland to fill the vacancy on the Supreme Court created by the death of Justice Antonin Scalia. If McConnell refuses to consider Garland and waits for a hypothetical Republican president to make an appointment next year, Obama said, he would face an ugly political battle with Democrats.

“The notion that Democrats will say, ‘Oh we’ll just go along with that,’ that is inconceivable,” Obama said in a question and answer session with students at the law school. “So now Democrats say ‘what’s good for the goose is good for the gander, we’ll wait four more years’” to see if a Democrat is elected president.

In a future battle, McConnell could be forced to end filibusters of Supreme Court candidates, as Democrats did for nominees to lower courts when they controlled the Senate. When the Senate and White House are controlled by different parties, Obama said, replacing Supreme Court justices would become impossible.

‘Subject of Contention’

There is a "growing attitude inside of the Senate that every nomination, no matter how well qualified the judge is, is a subject of contention," Obama said. Garland is one example, he said.

"It is perfectly acceptable for Republicans to decide, even though Merrick Garland is highly qualified, even though he’s indisputably a good and fair judge," not to vote for him, Obama said. "What’s not acceptable is not giving him a vote, not giving him a hearing, not meeting with him."

McConnell, a Kentucky Republican, has vowed not to allow a hearing or a vote on Garland, currently the chief judge on the federal Court of Appeals District of Columbia Circuit. Instead, McConnell says the next president should fill the vacancy.

‘Pivotal Seat’

Obama may try to make Republicans bleed at the ballot box over their refusal to consider Garland, but he is unlikely to do enough political damage to break their resistance to a confirmation vote before the November election.

So far, the administration’s efforts have had little effect. While at least 16 Republican senators have said they will meet with Garland as a courtesy, only two Republican senators now support a confirmation hearing for him: Mark Kirk of Illinois and Susan Collins of Maine. Two other Republican senators who previously supported a hearing, Jerry Moran of Kansas and Lisa Murkowski of Alaska, reversed themselves last week under pressure from conservative groups.

“I’m sure he’ll gloss over the fact that the decision about filling this pivotal seat could impact our country for decades, that it could dramatically affect our most cherished constitutional rights like those contained in the First and Second Amendments," McConnell said on the Senate floor on Thursday ahead of Obama’s remarks. “I’m sure he’ll continue to demand that Washington spend its time fighting on one issue where we don’t agree rather than working together on issues where we do."

Senator’s Tweet

Kirk on Thursday tweeted a picture of a hand-written note Obama sent him after he met with Garland. Kirk’s position "upholds the institutional values of the Senate and helps preserve the bipartisan ideals of an independent judiciary," Obama wrote.

"In fairness, Democrats are not blameless on this," Obama said of the conflict over judicial appointments. "If you talk to Republicans, they’ll often point to the Bork nomination as where this all started."

The Senate rejected President Ronald Reagan’s nomination of Judge Robert Bork to the Supreme Court in 1987 on a 42-58 vote, after a notoriously contentious debate.

Two Terms

Obama said that the stalemate over Garland threatens to leave the court with just eight justices for "potentially at least two Supreme Court terms," if the Senate doesn’t immediately confirm his successor’s nominee next year.

"We are going to see the kinds of sharp partisan polarization that have come to characterize our electoral politics seeping entirely into our judicial system," Obama said. "The courts will become just an extension of our legislators."

The struggle over Garland’s nomination threatens to drag on through the campaign season and could tie incumbent Republican senators more closely to their party and its political ballast. 

Public perceptions of the Republican Party have plummeted, with 60 percent of Americans holding an unfavorable view of it, according to the most recent Bloomberg poll. That is the party’s lowest standing in the poll’s seven-year history. By comparison, 49 percent held a negative view of Republicans at the same point in the 2012 election cycle.

Before it's here, it's on the Bloomberg Terminal. LEARN MORE