President Barack Obama called his Supreme Court nominee Merrick Garland “one of the best judges, not just in the country, but of his generation” and illuminated his thought process for choosing him during a sit-down interview with NPR published Friday.
The president’s choice of Garland, a highly experienced nominee and a 19-year veteran of the D.C. Circuit Court, was immediately stonewalled by many Republicans and met with some degree of letdown among liberal Democrats. But in his interview with NPR, which was conducted Thursday at the White House, Obama made the case that it was Garland’s reputation as a moderate and a consensus builder that made him so attractive.
“This moment in our history — a time when judicial nominations have become so contentious, a time when our politics is so full of vitriol — I think particularly benefits from a man who by all accounts is decent, full of integrity, is someone who tries to hear the other side's point of view, and can build bridges,” Obama said.
Yet despite Garland’s sterling reputation, and history of good relations on Capitol Hill with both Republicans and Democrats, he still faces strong resistance from GOP leaders in the Senate, who have stubbornly refused to consider hearings or a vote for him — and in some cases won’t even meet with him face to face.
Although the president has been steadfast in his belief that Supreme Court picks and the process of confirming them should be apolitical, he is not naive about the climate we’re in and the consequences of Republican intransigence on whether or not to give Garland an up or down vote.
“If Republicans stick to their current posture, promises a tit-for-tat process in which we will never have a clean nomination process on the merits, and presidents — whether they're Democrats or Republicans — are only going to be able to get their nominees through when they have their own party controlling the Senate,” Obama said. “At that point, the judiciary becomes a pure extension of politics. And that damages people's faith in the judiciary — because everybody understands that there's some politics involved in appointing judges, but we also expect that the judicial system can rise above the political process.”
Currently, public opinion is largely on the side of the president in this matter, and as the U.S. Senate enters a two-week recess, there could be considerable pressure on vulnerable Senate Republicans, and influential ones like Judiciary Committee chairman Sen. Chuck Grassley of Iowa, to fulfill their constitutional duty to advise and consent on Obama's pick.
“There's nobody who would suggest that our founders anticipated that a new rule is read into the Supreme Court nomination process in which for an entire year, we don't do that because there's an election going on,” the president added.
Obama admitted that past statements from Republicans praising Garland “played a role” in his thinking, but he continued to reiterate that it was the 63-year-old judge’s ability to persuade conservatives and liberals to find common ground that would make him valuable on a bench that he feels has been divided along 5-4 lines for far too long.
The president bristled at critics who have complained that he should have done more to increase diversity on the bench, pointing out that he has appointed “as many African-Americans to the Circuit Court as any president ever; more African-American women on the federal courts than any other president; more Hispanics, more Asian-Americans, more LGBT judges than any president in history.”
“We actually now have a majority of women and/or minorities on the circuit courts, something that's never happened before. So my record of appointing a judiciary that reflects the country is unmatched,” he added.
Obama’s first two confirmed picks were women, one of whom was the first Hispanic Supreme Court justice in history. “In each case, the good news is that I appointed the person who I absolutely thought was the best person for the job. In this case, Merrick Garland is the best person for the job,” the president said.
As far as the interview process goes, the president has no political litmus test questions. Roe v. Wade, for instance, was not discussed. Because of the president’s background in constitutional law, he doesn’t like to dwell on the specifics on individual cases, but instead seeks to get a better understanding of a potential justice’s personal background and how they interpret more ambiguous aspects of the law.
He also rebuts Republicans' use of the so-called "Biden rule," quoting a speech made by the vice president in 1992 when he was U.S. senator weighing the possibility of a Supreme Court nomination by then-President George H. W. Bush in an election year. Biden's speech, which came on the heels of the contentious confirmation of Justice Clarence Thomas, called for caution in the face of an election year appointment, but it was also delivered when no nominees were being considered and there were no vacancies on the bench.
Obama told NPR that Biden was speaking "hypothetically" and "there's no contradiction between what I'm doing and what Joe Biden suggested a president in my circumstances should do."
"This is just raw politics. 'We don't want somebody who's been nominated by a Democrat' — a claim that I would have never made at the time," he added.
The president said Democrats are not "blameless" for the politicized nature of Supreme Court confirmations either, but he pointed out that there is no example of a time where his party left a seat open on the court just to spite a sitting president they opposed. The last time a Supreme Court pick was confirmed in an election year was 1988, when Justice Anthony Kennedy was nominated by President Ronald Reagan.
"I'm quite certain that there were a whole lot of Democratic senators who understood at the time that he was unlikely to favor their positions on a number of issues. But ultimately, he was confirmed," Obama said.
As far as the president is concerned, the American people already decided who should have the power to replace the late Antonin Scalia: They re-elected him to do the job in 2012. He feels that Republicans are getting faced with the reality yet again that they can't get their way "100 percent of the time," but remains optimistic that public pressure and common sense will bring them around.
"I would expect that the senators who've been elected by their constituents will find in themselves the kind of respect for this incredible democratic experiment that our founders crafted, that they're not going to want to see it continue to degenerate into just a bunch of poll-driven, negative-ad-driven, polarized name-calling, because that's not what made us the greatest country on Earth," he said.