Bench Memos

President Obama’s 13 Falsehoods About the Supreme Court

President Obama gave an interview to BuzzFeed News on Monday about his languishing Supreme Court nomination. The president’s efforts to muster support have been so unsuccessful that at times in the interview it seems that he’s losing his grip on reality. Let’s review.

  1. Lied About History: President Obama flat-out lied about the historical pedigree for the Republicans’ course of action in this nomination, asking “Where’d that rule come from?” The answer is: “Your Vice President.” Republican Senators did not “fabricate a new rule” about no hearings or votes in an election year, nor is it true that there is “no precedent” for this course of action. I recommend that the President read about the Biden Rule and the Schumer Standard before trying this line again.
  1. Misstated Historical Precedent: One of the arguments we hear over and over from the Administration’s allies is that the Supreme Court has never known a vacancy that lasted as long as this one should. President Obama made that same inaccurate claim again today, saying that “historically, we have never gone too long before we fill a vacancy.” He left himself some wiggle room (i.e., how long is “too long”), but even so, it’s obviously untrue. Justice Kennedy, for instance, was the third nominee for the vacant seat left by Justice Lewis Powell’s death, which sat open for about eight months while the Democrats borked Robert Bork. And don’t tell Obama’s buddy Abner Mikva, who gave several examples of longer waits in a 2002 op-ed urging the Senate to filibuster all future Bush nominees.
  1. Lied About the Constitution: President Obama said that he believes that the Senate has a constitutional obligation to hold a hearing and a vote on his nominee, but his body language betrays him here. He looks physically uncomfortable arguing this point, which makes sense considering that the Washington Post Fact Checker gave this claim three Pinocchios. Moreover, Obama has never repudiated the Biden Rule, the Schumer Rule, or even his own efforts to deprive Justice Samuel Alito of a confirmation vote. His concern with future Republican presidents being caught in a “tit for tat” is a bunch of filibusters-for-thee-but-not-for-me malarkey, since he helped create the oppositional norm that he is now complaining about.
  1. Obfuscated Embarrassing History: President Obama claimed that Supreme Court nominations are “always politically controversial.” If only. In fact, it was Democrats who started the current trend of nomination fights by going scorched-earth against originalist nominees, starting with left-wing opposition to Robert Bork and Clarence Thomas. Before then, nomination fights were rare. But after Bork, the Democrats went crazy pretty much every time a conservative President wanted to nominate a conservative judge. Republicans, on the other hand, voted consistently for liberal nominees when they shouldn’t have, approving Ruth Bader Ginsburg by a vote of 96-3 and Justice Breyer with 87-9. So Supreme Court nominations aren’t “always politically controversial,” even when they should be.
  1. Overstated Merrick Garland’s Confirmation Margin: The president was a little too eager to bolster his nominee’s qualifications, so he incorrectly stated that Garland was “confirmed unanimously by the Senate” to his current post. In fact, it was 76-23.
  1. Feigned Concern for Uniformity: President Obama trotted out one of the dumbest arguments raised in favor of the nomination, which is that the Supreme Court won’t be able to decide circuit splits without a ninth justice. Even though this would only apply to a small minority of cases at most, it’s especially ridiculous because the Supreme Court denies certiorari to thousands of claimed circuit split cases every year. Is Obama really saying that the mere existence of circuit splits means that we need another justice? If so, then we wouldn’t need just a ninth justice; we’d need several dozen more just to resolve them all.
  1. Misstated the Role of the Judiciary: Another big mistake is his claim that the Supreme Court is the “ultimate arbiter of what the law of the land is.” This is a common misconception, but the Constitution actually rejects it. The Supreme Court only decides “cases” and “controversies,” whereas the Supremacy Clause states: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land[.]” It’s the people that are the arbiters of the law of the land through their elected representatives and the Constitution. President Obama isn’t alone in making this mistake, since more than half of the Supreme Court regularly gets it wrong too.
  1. Distorted the Facts About the Current Supreme Court: President Obama also claimed that Garland has “more experience on the federal bench than many of the folks who are currently on the Supreme Court.” That’s only true if by “many” you mean “two” (John Roberts and Elena Kagan, since all of the others were appointed to the federal bench before Garland) and you ignore that it was Senator Joe Biden himself who is responsible for Roberts’s late arrival to the bench. Remember that he killed Roberts’s nomination to the D.C. Circuit in 1992 without holding a hearing or vote on the nominations of Roberts and 31 others.
  1. Pretended to Look Out for Republicans: At one point President Obama even tried to make the case that blocking Garland’s nomination is bad for Republicans. After all, he says, Democrats might return the favor in the next Republican administration. But who really thinks President Obama cares about what’s politically good for Republicans, especially when it mysteriously happens to coincide with his own goals? Puh-leese.
  1. Pretended to Rise Above Fellow Democrats: In professor mode, President Obama tells the reporter that we shouldn’t “start thinking about the courts in terms of ‘How will they come out on this particular case?’”, but both of the Democratic presidential contenders have promised to appoint justices who will overrule Citizens United.
  1. Doesn’t Mean A Thing He Says, Part I: On the one hand, President Obama said that he was “looking for a judge who will play it straight,” but then seconds later took it all back, saying that he is looking for someone who is “not just always going to be looking out for the most powerful in society, but they are going to be thinking about ordinary people and how the law’s impacting them in a practical way.” And later he flopped back once more, saying that justice “doesn’t favor one group or another.”
  1. Doesn’t Mean A Thing He Says, Part II: Late in the interview, President Obama claimed that the way to preserve the American rule of law is actually about making sure that nomination disputes should “minimize the politics[.]” In almost the same breath, he called on people to “put pressure on your senators, to say, ‘do your job.’” Which is it, counselor?
  1. Doesn’t Mean A Thing He Says, Part III: Finally, in discussing the Supreme Court’s game-changing decision yesterday to force the government to take a reasonable position in the Little Sisters of the Poor case, President Obama said he wouldn’t speculate about why the Supreme Court made its decision and then went right on to speculate: “I won’t speculate as to why they punted, but my suspicion is that if we had nine supreme court justices, there might have been a different outcome.”


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