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Blue State Blues: Obama’s Supreme Court Bait-and-Switch


In an ideal world, where judges followed the law instead of making it, and Democratic presidents put judicial qualifications ahead of “fundamentally transforming America,” there should be no problem with the Senate confirming President Barack Obama’s Supreme Court nominee.

But we live in the world the left has created. Therefore it is critical to recognize Obama’s Supreme Court bait-and-switch tactics for the ruse that they are.


Earlier this week, the White House leaked that one of the names under consideration to fill the seat vacated by Justice Antonin Scalia’s recent passing — the “Scalia seat,” if you will — was Nevada Gov. Brian Sandoval, a Republican.

He asked that he be dropped from consideration, but he was never really in the running. Would Obama risk his leftist legacy by appointing someone from the other side?

The Sandoval trial balloon was simply a ruse — one that served two purposes. One, it highlighted the fact that Republicans will refuse even to consider one of their own, allegedly in order to spite the president. Two, it started conversations about the pros and cons of Sandoval versus other candidates.

Once those conversations start, even with a Republican, they are impossible to stop. They create an expectation that someone must be considered. It starts with Sandoval, and goes left — far left.

Yes, Republicans have an unusually strong hand. They are citing what they now call the “Biden rules,” referring to the fact that Vice President Joe Biden once argued the Senate could and should block a Republican president from nominating judges to fill Supreme Court seats in an election. year. As Marc Thiessen points out in the Washington Post, Biden’s obstructionism as chair of the Senate Judiciary Committee blocked lower nominations as well.

But today’s Republican leadership has a terrible track record in confrontations with the White House. And once they start discussing the qualifications of this or that judge, they will have allowed Obama to re-frame the debate, and undermined their own negotiating position. A capitulation will then be inevitable. They must not take the bait.

Democrats will whine about Republicans “violating the Constitution.” But no one seriously believes that. As Biden himself argued in 1992, while then-President George H. W. Bush had the “right” to nominate a justice, he had the equal “right” under the Constitution to oppose that justice. More recently, Sen. Chuck Schumer (D-NY) argued in 2007 that the Senate should block George W. Bush’s nominees for the last 18 month of his administration.

Often, both parties share the blame for Washington’s dysfunction, but this is one case where Democrats bear almost all of the blame.

From Franklin Delano Roosevelt’s court-packing threats of the 1930s, to the emergence of judicial activism in the 1960s, to the “Borking” of the 1980s, to the Bush v. Gore hysteria of 2000, the Democrats have cast the Supreme Court as an ideological creature–to be wielded against opponents, or else bullied into submission.

Republicans have not responded in kind. Typically, they mumble something like “elections have consequences,” and allow the Democrats to do what they wish.

And over time, Republican-appointed judges often become more liberal, while the opposite is never the case among Democrat-appointed judges. They see the law in political terms, and therefore they know their job is to vote with the party, letting their clerks fill in the citations and flowery prose.

Democrats have politicized the courts. So let the political process decide the Scalia seat, and wait until 2017.


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