The Constitution says that I nominate candidates for the Supreme Court when there’s a vacancy and the Senate exercises its constitutional authority to advise and consent. I’m going to do my job. We are going to go through a process as we have done in two previous Supreme Court vacancies to identify an outstanding candidate that has impeccable legal credentials, and that would bring the kind of ability, and compassion, objectivity, and legal reasoning to the court that the highest court in the land demands.
Once I’ve made the nomination, Leader McConnell and all of the members of the Senate will make a decision about how they fulfill their constitutional responsibilities. I recognize that the politics are hard for them. Because the easier thing to do is to give in to the most extreme voices in their party and stand pat, and do nothing.
But that’s not our job. Our job is to fulfill our constitutional duties. And so my hope and expectation is that once there is an actual nominee, once this is no longer a hypothetical, that those on the Judiciary Committee recognize that their job is to give this person a review, to show the courtesy of meeting with them. Then they are free to vote what ever their conscience dictates about whether this person is qualified or not.
In the meantime the American people are gonna have the ability to gauge whether the person I nominate is well within the mainstream, is a good jurist, is somebody who’s worthy of sitting on the Supreme Court. And I think it will be very difficult for Mr McConnell to explain if the public concludes that this person is very well qualified, that the Senate should stand in the way simply for political reasons. We’ll see what happens. And I think the situation may evolve over time. I don’t expect Mitch McConnell to say that is the case today. I don’t expect any member of the Republican caucus to stick their head out at the moment and say that. Let’s see how the public responds to the nominee we put forward.
The one thing I think is important to dispel is any notion that somehow that this is some well established tradition, or some constitutional principle, that a president in his last year in office cannot fill a Supreme Court vacancy. It’s not in the text of the constitution, and ironically these are Republicans who say they believe in reading the text of the constitution and focusing on the intent of the constitution. None of the founding fathers thought that when it comes to the president carrying out his duties, he can do it for three years and then on the last year stop doing it.
There’s an argument that, ‘well, the president shouldn’t do this because he’s a lame duck.’ Well, the truth of the matter is that traditionally the term lame duck refers to the two or three months after an election has taken place, in which a new president is about to be sworn in. I’ve got a year to go, I don’t think they’d approve of me abdicating on my duties as commander in chief and stop doing all the other work I’ve got to do. Well, this is part of my job.
There’s been arguments that for 80 years that this has been the tradition. Well, that’s not the case. Justice Kennedy was approved after being nominated by Ronald Reagan in Ronald Reagan’s last year of office. And they say ‘well that’s different because he had been nominated in 1987, even if he was confirmed, or in 1985 and confirmed in ’86.’ Well the notion that there’s some two month period in which suddenly it all flips and everything shuts down? That’s not a credible argument.
What other arguments do they make? They suggest that there’s been a couple of times where Democrats have said it would be wise for a president not to nominate someone. First of all, we know senators say stuff all the time. Second of all, these were comments where there was no actual nomination. That’s not the same. It has no application to the actual situation that we have right now.
I’m trying to think of any other reeds that they’re grasping here as to why they would not carry out their duties. And I can’t really think of one. I recognize that this is an important issue for their constituencies. And it’s particularly sensitive because this is Justice Scalia’s seat that is now vacant and that a whole host of decisions in the Supreme Court turn on this 9th justice and their vote. But that’s how our democracy is supposed to work.
And I do – the last point I’ll make. We have already seen a breakdown of the judicial appointment process that gets worse and worse each and every Congress. It becomes harder and harder to get any candidate to the judiciary confirmed. We saw Sen. Reid have to employ the so-called nuclear option because there was such a backlog in terms of getting judicial nominations through.
If in fact the Republicans in the Senate take a posture that defies the constitution, defies logic, is not supported by tradition simply because of politics, then invariably what you’re going to see is a further deterioration in the ability of any president make any judicial nomination. And appointments to the supreme court as well as the federal bench suddenly become a complete extension of our polarized politics. And at that point not only are we going to see more and more vacancies and the court systems breakdown, but the credibility of the court itself is diminished because it’s seen as an extension of our politics. This is a Republican judge, or this is a Democratic judge, rather than this is a Supreme Court Justice whose supposed to be standing above the day to day politics.
So I understand the posture they’re taking right now. I get the politics of it, I’m sure they’re under enormous pressure from their base and their constituencies around this issue. I’ve talked to many of them, and I’ve told them I’m sympathetic. And by the way, there’s not a lot of vigor when they defend the position they’re taking, that they wouldn’t even consider a supreme court nominee. They’re pretty sheepish about it, about those comments.
So we’ll see how this plays itself out. But I’m going to do my job. I’m going to nominate somebody and let the American people decide whether that person is qualified. And if they are qualified let the American people decide whether there’s enough time for the U.S. Senate to hold hearings and have a vote. It’s not as if, from what I see, that the Senate calendar is so full that we don’t have time to do this nominee.