President Obama on Tuesday said Republican senators should do as he says on the Supreme Court vacancy, not as he’s done.
Speaking at a news conference at a summit of Pacific nations in California, Obama demanded that Republicans give his forthcoming nominee to the High Court a fair hearing and vote. He sidestepped a question about his own obstructionist role as a senator when he joined efforts to kill Justice Samuel Alito’s nomination in 2006.
“What’s fair to say is that how judicial nominations have evolved over time is not historically the fault of any single party,” he said. “This has become just one more extension of politics … What is also true is Justice Alito is on the bench right now.”
Some political observers have speculated that Obama will nominate a relative moderate to replace Justice Antonin Scalia — who died suddenly this past weekend — in order to make it harder for Republicans to remain unified against him. But he said Tuesday he would follow the same process that produced liberal justices Sonia Sotomayor and Elena Kagan. And he interrupted a reporter who assumed he planned to pick a moderate.
“No,” he said, adding that he has given no specifics about the ideological positions of his next Supreme Court choice. “I don’t know where you find that.”
The former constitutional law lecturer used the news conference to lecture Republicans on the Constitution.
“The Constitution is pretty clear about what is supposed to happen now,” he said. “When there is a vacancy on the Supreme Court, the president of the United States is to nominate someone. The Senate is to consider that nomination. Either they disapprove of that nominee, or that nominee is elevated to the Supreme Court. Historically, this has not been viewed as a question.”
Obama pronounced himself “amused” that strict constructionists would be reading new provisions into the Constitution. But John Yoo, a former George W. Bush administration official who now teaches law at the University of California, Berkeley, said earlier Tuesday on “The Laura Ingraham Show” that the Senate is under no constitutional obligation to vote on judicial nominees.
“They show as much fidelity to the text of the Constitution as they do in a lot of other areas,” he said of the president’s supporters. “Because they haven’t read the appointments clause.”
It is true, Yoo said, that the president makes judicial nominations. But the second part is that the nominee cannot be confirmed without the “advice and consent” of the Senate, he added.
“There’s no constitutional requirement that the Senate act,” he said. “In fact, if you go back … and look at what (the framers) thought, the people who wrote the appointments clause say in the Federalist Papers that the Senate is supposed to use its advise-and-consent power as a weapon against the executive branch.”
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Obama told reporters his nominee will be “indisputably qualified” by any standard.
“There’s not going to be any particular position on a particular issue that determines whether or not I nominate them,” he said. “But I’m going to present someone who indisputably is qualified for the seat.”
Obama brushed aside a question about whether he would use a recess appointment while the Senate is out of session to put a justice on the court without a confirmation vote. Such an appointee would serve until 2017.
“There is more than enough time for the Senate to consider in a thoughtful way the record of a nominee that I present,” he said.
Obama may be gambling that pressure will build on senators to confirm his choice permanently. On a radio program Tuesday, Senate Judiciary Committee Chairman Charles Grassley, R-Iowa, did not rule out holding hearings on a court nominee. And Sen. Thom Tillis, R-N.C., said on another radio program that Republicans could “fall into the trap of being obstructionist” if they block Obama.
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Obama declined to take sides in the increasingly competitive Democratic presidential primary, but he spent a fair amount of time reiterating his belief that Donald Trump will not be president. He dismissed the GOP front-runner as a reality television star and painted the entire Republican field with the same broad brush.
“I don’t think it’s restricted, by the way, to Mr. Trump,” he said. “He says in more interesting ways what other candidates are saying, as well.”