Democrats, led by lame duck Barack Obama, have decided that nominating Judge Merrick Garland is good politics for their side in the lead up to the presidential election in November.
I expect this move will backfire because it’s more of the same cynical politics that has created the Donald Trump-Ted Cruz outsider movement and its legions of brand new voters.
Obama and the Democrats know full well that the Republican-controlled United States Senate will not, under any circumstances, move on the nomination, but have opted to create a media circus anyway by putting Garland’s name forward. Anyone familiar with our Constitution and congressional precedent knows that the legislative branch has every right to take this principled stand against action. Under the “Advise and Consent” process, Senate Majority Leader Mitch McConnell and Judiciary Committee Chairman Chuck Grassley “advised” that they will stand on historical precedent and not allow this all-important court vacancy to be filled in the waning months of the Obama Administration. By deciding who to elect as our next president, “We the People” will control the future balance of the court.
The hypocritical Democrats believed the same thing when Republican presidents were faced with similar circumstances in 1992 and 2007. When the Democrats controlled the Senate in the last year of President George H.W. Bush’s administration, then-Senator Joe Biden said “it is my view that if a Supreme Court justice resigns tomorrow or in the next several weeks or resigns at the end of the summer, President Bush should consider following the practice of a majority of his predecessors and not – and not – name a nominee until after the November election is completed.” Much in the same vein, Senator Chuck Schumer stated categorically in 2007 that President George W. Bush should not get another Supreme Court pick “except in extraordinary circumstances” and that Democrats should “reverse the presumption of confirmation” because the court was “dangerously out of balance.”
Even President Obama himself has supported the Senate’s constitutional right to advise against Supreme Court nominations in various fashions. In 2006, then-Senator Obama supported the Democrat-led filibuster of Judge Samuel Alito and said “I think Judge Alito, in fact, is somebody who is contrary to core American values, not just liberal values.”
On Thursday, President Obama took his deceit and trickery on the subject of the handling of the federal judiciary to new levels when he said that by not moving on the Garland nomination Senate Republicans were damaging “people’s faith in the judiciary.” Obama went on to say that Supreme Court picks are in jeopardy of becoming “a pure extension of politics.”
The sad truth is that no one has publicly humiliated the Supreme Court for purely political reasons more than President Obama. During his 2010 State of the Union address, Obama falsely attacked the Supreme Court for their decision in defense of free speech in Citizens United v. Federal Election Commission.
In the well of the U.S. House during the joint session of Congress, right in front of the justices who had no ability to defend their position, Obama said “with all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests – including foreign corporations – to spend without limit in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”
This presidential declaration was a game changer; not only was the charge false, it accomplished exactly what Obama is now railing against by making the judiciary fair game for overt political assaults.
In 2012, President Obama chose to publicly intimidate the Supreme Court before their decision in the first challenge to Obamacare. Obama put inappropriate political pressure on the Supreme Court when he said, “I’d just remind conservative commentators that for years what we’ve heard is the biggest problem on the bench is judicial activism or a lack of judicial restraint – that an unelected group of people would somehow overturn a duly constituted and passed law…well, here’s a good example. And I’m pretty confident that this court will recognize that, and not take that step.”
Then in 2015, on the eve of the subsequent Obamacare Supreme Court ruling, Obama was up to his Alinskyite tactics again when he stated, “it seems so cynical to want to take coverage away from millions of people, to take care away from the people who need it the most, to punish millions with higher costs of care and unravel what’s now been woven into the fabric of America.” There is no doubt in my mind that this statement impacted the court’s thinking at some level.
As the evidence makes clear, this is really a case of what President Reagan would call “there you go again” politics with the nomination of Judge Merrick Garland. President Obama and the Democrats have chosen to ignore precedent and even their own words and deeds just to enhance their political prospects at the ballot box in November. This is the very definition of making the judiciary “a pure extension of politics.” In my opinion, the ugly and cynical Obama-fueled nomination fight that is to come will only cause millions of additional new Trump and Cruz voters to get off the bench to say “no more!”