This is a pretty astounding clip from an Obama press conference yesterday. Obama was waxing poetic about the obligation of the Senate to confirm whatever judicial nomination he throws up there when a reporter stunned Obama into literal silence with what should have been an easily foreseeable question. When Obama finally stumbled and fumbled his way into an answer, he basically admitted that he and his party were a major part of the problem with judicial nominations.
I’m going to include a transcript here but you owe it to yourself to actually watch the video, when you can.
Reporter: And lastly, as long as we’re doing this in a row, how do you respond to Republican criticism that you and other Democrats in your administration who were in the Senate at the time tried to filibuster Judge Alito in 2006?
Obama: [embarrassingly long period of silence and stammering] You know, look. I think what’s fair to say is that how judicial nominations have evolved over time, uh…. is not… historically the fault of any single party. This has become just one more extension of politics. And, there are times when 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. Um, but, what is also true is Justice Alito’s on the bench right now.
This is, frankly, a pretty shocking admission on Obama’s part, even if it is flatly untrue. Any objective reading of history would hold the Democrats more or less exclusively responsible for a) inventing judicial obstruction and b) escalating its use. The obstruction of Abe Fortas’ elevation to the Chief Justice position during LBJ’s final year was bipartisan in nature and was related to the unprecedented nationwide rejection of LBJ and Fortas’ own ethical problems.
It was the Democrats who invented obstructing a Supreme Court nominee for purely partisan and ideological reasons when Reagan nominated Robert Bork to the bench in 1987. Moreover, they did it for exactly the same reasons the Republicans are threatening to do so now – they believed that they could stall the nomination process until after the 1988 elections, when they felt they could defeat George H.W. Bush. The architect of this plan and strategy was none other than Obama’s own Vice President, Joe Biden.
The Democrats were responsible for escalating judicial obstruction by using the filibuster to block George W. Bush’s nominees, a previously unprecedented tactic (with the exception of the above-mentioned Fortas, who was filibustered on a bipartisan basis to save him the embarrassment of losing a floor vote). Having invented the judicial filibuster and perfected its use, the Democrats ratcheted up their judicial obstruction in 2006 by attempting to filibuster Alito. The only reason they failed is that Republicans at the time held 55 seats in the Senate. They knew good and well they could not muster actual majority opposition to his nomination or confirmation.
They escalated again in 2007 when Chuck Schumer flatly declared that any George W. Bush nominee to the Supreme Court would not be confirmed and that Democrats would wait until after the election.
When Republicans turned their own weapon – the judicial filibuster – against them after Obama’s election, Democrats in the Senate escalated again by destroying the Senate filibuster and ramming through over 100 nominations on sheer party line votes.
At every step of the process, Democrats have been the first to use a new tactic, the first to raise the stakes, and the first to bring new and unprecedented weapons into the fight over judicial nominees. Now that the Republicans are threatening to use one of the weapons they invented, Obama and his minions are marching out sad and adorned with crocodile tears about the DAMAGE TO THE CONSTITUTION in front of a compliant press and playing the “guys, this has really gotten out of hand, let’s all get back to the way things were” card.
The Democrats, led by Joe Biden, cast this die almost exactly 30 years ago when they decided to play partisan politics with the nomination of Robert Bork, and they have used constant brinksmanship ever since. Obama is right that he personally is partly to blame, but he is wrong to claim that both parties are equally at fault for what has been wrought to the judicial nomination process. The Democrats are almost exclusively at fault, and now they can reap the whirlwind they have sown.