Regrets? Barack Obama’s had a few. But then again, too few to mention.
His spokesman Josh Earnest mentioned one this week. “That is an approach the president regrets,” Obama’s flack says of the then-senator’s attempted filibuster of Samuel Alito’s nomination to the Supreme Court. “These are two different things,” Earnest insists of current GOP vows to block Obama next pick.
Sure, a Republican nominated Sandra Day O’Connor’s replacement a decade ago and a Democrat now looks to nominate the late Antonin Scalia’s. To quote another blue-eyed chart-topper, Vanilla Ice: “That little bitty change — it’s not the same.”
Senator Obama cast a reliable “no” in both instances in which a nominee of President George W. Bush came up for a vote. Now he cries foul that senators, several of whom supported his previous two nominees to the high court, seek to block a third appointment by the lame-duck president.
“Republican obstructionists” remains a phrase unfortunately more spoken than embodied.
Every Supreme Court nominee rejected by vote in the last century received his nomination by a Republican president. The last time the Senate voted down a Democrat president’s nominee to the Supreme Court the airplane flew in the imagination rather than through the air — it occurred 122 years ago this week to be precise. Tellingly, a fellow Democrat, Senator David Hill, spearheaded the “borking” of Grover Cleveland nominee Wheeler Hazard Peckham in an upper chamber controlled by Democrats. A quarter century earlier, Republicans killed a nomination — made by fellow Republican Ulysses Grant. No history of Republicans reflexively voting down Democratic presidents’ Supreme Court nominees exists to match the copious history of pundits warning of Republicans reflexively voting down Democratic presidents’ Supreme Court nominees.
The president’s votaries dishonestly point to the Democratic Senate graciously approving Ronald Reagan’s appointment of Anthony Kennedy in his last year in office, forgetting to note that the seat became open 19 months before the president’s departure from office and only on the third try, after the Democrats “borked” Robert Bork, did the Gipper win one. A second talking point notes the opposition to Lyndon Johnson elevating Abe Fortas to chief justice without noting the bipartisan composition of the antis, Fortas ultimately withdrawing his name from consideration, and the payoff scandal that led to his forced resignation from the court less than a year later.
Justices appointed by Republicans often proved far different on the bench than the caricatures painted of them by Democrats while under consideration.
Justices nominated by Republican presidents authored the court’s opinion in Roe v. Wade, Kelo v. New London, Obergefell v. Hodges, King v. Burwell, and National Federation of Independent Business v. Sebelius. No justice nominated by a Democrat in the last half century offers an instance of surprising former supporters by dubbing Obamacare or government takings of private land for private benefit unconstitutional, or finding the numerous state bans on gay marriage or even partial-birth abortion constitutional.
Who is the Democratic Party’s David Souter, Harry Blackmun, or John Paul Stevens — or John Roberts or Sandra Day O’Connor, even?
The corruption of office that sees judges act as legislators voting on cases rather than ruling on them predictably results in an uncouth uber-politicization of an inherently political nomination process. Democrats first embraced this by projecting bias on Republican nominees and voting against them in great numbers in the Senate with the belief that the nominees would exhibit a similar partisanship on the high bench. Republicans, not called the stupid party for nothing, only caught up to reality several generations after Democrats identified the Supreme Court as a second legislative branch.
Like his vote against lifting the debt ceiling and condemnation of military intervention without congressional authorization in conflicts that do not threaten national security, President Obama again finds fault with the tactics and positions of Senator Obama. Of course, like all bad-faith actors, the president points to some reason, circumstance, or contingency that compelled him to vote down, in good faith mind you, all of President Bush’s Supreme Court nominees and attempt to filibuster Samuel Alito.
Don’t so quickly condemn the mental gymnastics. If it weren’t for situational ethics, some people wouldn’t have any.
Barack Obama — who forced through his signature domestic program by dubious legislative means, deftly ran end-arounds on Congress via executive orders and regulations, and waged war in Libya without congressional approval — can surely leave office singing the words, “I did it my way.” He just can’t expect his opposition to become a glee club joining in on the chorus.