The following is an excerpt from OpinionJournal’s “Best of the Web” at The Wall Street Journal written by the editor, James Taranto.
Regrets, He’s Had a Few
President Obama says he intends to nominate a successor to the late Justice Antonin Scalia. In an election year with a Republican-controlled Senate, you’d expect a battle royal. But the normally aggressive president has turned strangely passive.
Not that he’s been serene. At a Tuesday press conference he was peevish as usual, maybe even a bit more than usual. “There’s no unwritten law that says that it can only be done on off years—that’s not in the constitutional text,” he said, tautologically. “I’m amused when I hear people who claim to be strict interpreters of the Constitution suddenly reading into it a whole series of provisions that are not there.”
Later, as blogress Ann Althouse notes, he seemed to catch himself in the process of uttering an obscenity: “It’s pretty fuh hard to find that in the Constitution.”
If you’ll forgive us a cruel observation, the president’s wounded, sarcastic tone reminded us of poor Jeb Bush. The substance was noteworthy, too. A reporter asked him about his vote, a decade ago as a U.S. senator, to filibuster the Supreme Court nomination of Judge Sam Alito. His response:
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. 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.
But what is also true is Justice Alito is on the bench right now.
Although Obama’s remarks were framed as an accusation—“they’re thinking”—implicit in them was an acknowledgment that his own position back then was a cynical nod to political expediency. (Voting with him were Hillary Clinton, Joe Biden and Chris Dodd, the three other Democratic senators who would seek the presidency in 2008.)
Press secretary Josh Earnest made the admission explicit on Wednesday: “As the president alluded to yesterday, he regrets the vote that he made,” Mediaite quotes him as saying. “[Senate Democrats] shouldn’t have looked for a way to just throw sand in the gears of the process. And frankly, looking back on it, the president thinks he should have just followed his own advice.” (What is sin? “Being out of alignment with my values.”) It’s fair to doubt the genuineness of Obama’s contrition. Still, what else has he ever regretted, other than failing to “explain” his policies better?
There is an important difference between 2006 and 2016. As the president noted, “Justice Alito is on the bench right now.” A decade ago the president’s party held a Senate majority, ensuring Alito of the votes to be confirmed. Prior commitments by seven Democrats ensured there would be the 60 votes needed to overcome a filibuster (the actual vote was 72-25). So Obama’s vote was nothing more than political posturing.
Today, by contrast, the opposition party holds the Senate majority. Unlike Obama and his fellow Democrats then, Senate Republicans now are in a position to make a real decision.
Obama’s passivity reflects real weakness: He needs the Senate’s consent and is all but certain not to be able to get it. ABC News reports that “liberal activist groups” have “already sprung into action,” a paraphrase of someone who works for an outfit that styles itself the Alliance for Justice. That “action” consists of getting on the phone in what another participant called (again in ABC’s paraphrase) “a briefing call to engage a broader group of stakeholders and provide talking points to rebut anticipated GOP rhetoric—but not to proactively condemn Republican opponents.”
As Robert Bork learned in 1987, when liberal activist groups say “Jump,” Democratic senators ask “How high?” But without a majority, Democrats couldn’t win a vote if they jumped to the moon.
The Huffington Post’s Sam Stein collects some quotes demonstrating the futility of the White House position:
“No we don’t,” said Anita Dunn, a long-time party operative, when asked if Democratic leadership had much leverage in the upcoming fight.
Jim Manley, a former top aide to Senate Minority Leader Harry Reid (D-Nev.), said it was unlikely for a nominee to move forward. “Is there any leverage, no,” he said.
Even those occupying positions of power concede that the procedural cupboard is bare.
“I don’t know of any that are allowed,” Sen. Chuck Schumer (D-N.Y.) said, when asked if there were mechanisms that might allow the party to put Republicans on record.
We’re not sure what Stein means by that; Republicans are on record as saying they’ll defer the consideration of Scalia’s successor until the inauguration of Obama’s. Stein reports that Democrats “are turning to a shaming campaign, seeking to badger Senate Republicans and label them obstructionists, in hopes that a few of them—presumably those with uphill re-election battles—will stop echoing the party line.”
That will not work. For Republicans, “Jump” is not a friendly command so much as a call to commit suicide. That’s not to deny that the impending dispute will make some vulnerable Republican incumbents even more so (Illinois’s Mark Kirk comes to mind). But a Republican cannot win in a Democratic state without Republican votes, so that siding with the Democrats would be even more perilous for senators like Kirk.
An example from the other side illustrates the point. Alito was confirmed 58-42, with one Republican in opposition: Lincoln Chafee, of heavily Democratic Rhode Island. Chafee was also the lone GOP dissenter in the 2002 Iraq war vote. He nonetheless lost his re-election bid to an actual Democrat in 2006. (Such dissents were not always as dangerous as they are today: Of the six Republicans who voted against Bork’s confirmation in 1987, five sought re-election at the end of their terms. Only one, Connecticut’s Lowell Weicker, lost.)
“Already, there is some evidence of Republican anxiety,” Stein writes hopefully:
Sen. Thom Tillis (R-N.C.) has encouraged his party to at least hold hearings on a nominee. Sen. Susan Collins (R-Maine), in a 57-word statement that said barely anything, suggested her party shouldn’t rush to judgment. And Sen. Ron Johnson (R-Wis.), up for re-election this year, backtracked on Tuesday to say he’d be open to hearings. Sen. Chuck Grassley (R-Iowa), who chairs the Judiciary Committee, left the door ajar to holding hearings.
Collins—a liberal Republican who is very popular in a Democratic state and isn’t up for re-election until 2020—is the one GOP senator who might have both the inclination to break from her party and the ability to do so without paying a political price. But look at the quotes from the other senators Stein cites and you find that the equivocations don’t amount to much.
Tillis: “If [Obama] puts forth someone that we think is in the mold of President Obama’s vision for America, then we’ll use every device available to block that nomination, wait for the American people to voice their vote in November and then move forward with a nomination after the election and most likely with the next president.”
Johnson: “I strongly agree that the American people should decide the future direction of the Supreme Court by their votes for president and the majority party in the U.S. Senate.”
Grassley: “This is a very serious position to fill and it should be filled and debated during the campaign and filled by either Hillary Clinton, Sen. Sanders or whoever’s nominated by the Republicans.”
Stein is not alone in casting about futilely for Republican dissent. Yesterday the Senate Democrats Twitter account quoted Sen. Orrin Hatch of Utah on CNN: “I don’t think we should filibuster Supreme Court nominees or any judge nominees.”
In that CNN interview, Hatch also said: “It’s going to be up to . . . Sen. Grassley and [Majority Leader Mitch] McConnell to determine whether they have a hearing or whether they don’t have a hearing. But Sen. McConnell is right. He wants to get it out of this tremendously political brouhaha time, that this presidential candidate the situation is in, and get it to where it will be decided by whoever wins the presidency next year.”
Opposition to filibustering of judicial nominees is a longstanding Hatch position, and one with utterly no effect. In 2011, when Senate Republicans used a filibuster to block Obama’s nomination of Goodwin Liu to the Ninth U.S. Circuit Court of Appeals, Hatch registered his protest by voting “present.” As we noted at the time, because the threshold for overcoming a filibuster is three-fifths of all seated senators (as opposed to voting senators), a “present” vote is identical in effect to a vote to sustain a filibuster.
A Politico headline yesterday declared that Sen. Dean Heller of Nevada had made a “sharp break” from the Republican leadership’s position that the seat should be left vacant until after the election. The article refuted the headline, which Politico has since toned down considerably:
“The chances of approving a new nominee are slim, but Nevadans should have a voice in the process. That’s why I encourage the President to use this opportunity to put the will of the people ahead of advancing a liberal agenda on the nation’s highest court,” Heller said on Wednesday in his statement.
Heller also nodded to Republican Gov. [Brian] Sandoval, who many in Washington believe wants a judicial appointment after his term is over.
“Should [Obama] decide to nominate someone to the Supreme Court, who knows, maybe it’ll be a Nevadan,” Heller said.
Before running for governor in 2010, Sandoval served as a federal district judge, a George W. Bush nominee. Does anyone think Obama is remotely inclined to choose someone like him—or that if he did, the Alliance for Justice and other such groups would swallow it?
So who will be the nominee? Or, as John Podhoretz puts it rhetorically: “Who’s going to want to be nominated to the Supreme Court under these conditions?” It’s a point that hasn’t received enough attention in the discussion of the impasse. By signaling early that confirmation isn’t going to happen this year, McConnell and his fellow Republicans have given would-be nominees a strong incentive to say no to the president.
Ricochet’s Rory Cooper puts it this way: “President Obama should apologize to whomever he selects in advance, since he is taking someone who likely has realistic ambitions to serve on the Supreme Court and putting them [sic] in a position where that will certainly never happen.”
“Certainly” overstates matters a bit. If the Democrats take the White House and the Senate majority in November, it’s conceivable the next president could renominate Obama’s pick and get him confirmed. (Under such circumstances, the filibuster would almost certainly go by the boards.) There is a precedent here, albeit an old one: In January 1881, the lame-duck president, Rutherford Hayes, nominated Stanley Matthews to the court. The Senate did not act, but James Garfield renominated him shortly after taking office in March. Matthews was confirmed in May, 24-23.
Even if Democrats don’t win this year, a young and able nominee could be considered again by a future Democratic president in the 2020s. George H.W. Bush nominated John Roberts to the U.S. Court of Appeals for the District of Columbia Circuit in 1992, but the Senate failed to act and the nomination expired. George W. Bush nominated him again in 2001, but Sen. Patrick Leahy, then chairman of the Judiciary Committee, refused to hold hearings. Roberts was finally confirmed in 2003, after Republicans took the Senate.
Still, just being nominated for the Supreme Court poses an immediate and heavy burden. A nominee has to submit voluminous paperwork to the White House and undergo an FBI background check. If there are hearings, they could be brutal.
Accepting a nomination would mean incurring considerable and immediate costs for a delayed and highly uncertain reward. No doubt Obama will find someone who’s willing to make the sacrifice, but he may need a long list. No wonder he doesn’t seem confident.
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