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Obama asks, 'Only Republican presidents get to nominate judges?'

There may be plenty of hypocrisy to go around on judicial-nominee fights, but the president's right to go after Sen. Richard Burr (R-N.C.).
U.S. President Barack Obama speaks at a campaign event for Democratic presidential nominee Hillary Clinton on the campus of the University of Chapel Hill on Nov. 2, 2016 in Chapel Hill, N.C. (Photo by Peter Zay/Anadolu Agency/Getty)
U.S. President Barack Obama speaks at a campaign event for Democratic presidential nominee Hillary Clinton on the campus of the University of Chapel Hill on Nov. 2, 2016 in Chapel Hill, N.C. 
By Steve Benen, Steve Benen
Three Republican senators have suggested they're prepared to keep a Supreme Court blockade in place indefinitely, but in this trio, Sen. Richard Burr (R-N.C.) was the most brazen. "If Hillary becomes president, I'm going to do everything I can do to make sure that four years from now, we're still going to have an opening on the Supreme Court," the Senate Intelligence Committee chairman recently told a GOP audience.Not surprisingly, President Obama heard about the comment, and was only too glad to talk about it yesterday while campaigning in Raleigh in support of Hillary Clinton and Senate hopeful Deborah Ross.

"Some are saying they won't appoint a ninth Supreme Court justice at all. Deborah's opponent, Senator Burr, just said -- just said -- that if Hillary wins, he'll do everything he can to block all Supreme Court nominations. Now, keep in mind that the reason they said they would not have a hearing or vote for my Supreme Court nomination, bucking all of American history, was because we thought the American people should decide the next Supreme Court justice. Now they're saying, well, if they don't decide the way we want them to decide, maybe we won't even do that."Eleven years ago, Richard Burr said a Supreme Court without nine justices would not work. Well, what changed? What, only Republican Presidents get to nominate judges? Is that in the Constitution? I used to teach constitutional law. I've never seen that provision."

This was, I believe, one of the first times the president has commented at length about the prospect of an indefinite Republican blockade on the Supreme Court.But it also got me wondering: what exactly did Burr say 11 years ago?A Democratic source yesterday sent around a fascinating transcript yesterday of a Richard Burr floor speech from 2005, when the North Carolina Republican was in his first year in the Senate, and when it was then-President George W. Bush sending judicial nominees to Capitol Hill. Burr said at the time:

"Obstructing votes on Presidential nominees threatens the future of our judicial system and the nature of the Supreme Court. You see, I am not sure that many Americans have stopped to think: Well, what happens if this is exercised for Supreme Court Justices? Because I believe in the next several years we will have one or two or possibly more Supreme Court nominees to consider."Well, the Court still meets. If we are not able to produce a Justice out of this fine Hall, then they will meet with eight Justices. I have to believe there is an odd number of Justices for a very logical reason. It was so there would not be a tie."On a 4-to-4 tie, what happens? Seldom have we asked the question. On a 4-to-4 tie in the Supreme Court, the lower court's decision stands. That means all of a sudden the Supreme Court, our highest court, the Court we look to to be the best and brightest to interpret law and the Constitution, is insignificant in the process. It means that whatever that court of appeals was -- the Fourth Circuit or the Ninth Circuit-- whatever decision they came up with that somebody believed was wrong, and they appealed it to the Supreme Court, and the Supreme Court, on the merits of the case, heard it, would become the law of the land."My colleagues on the other side argue that the reason this is so important is because a Federal judgeship is for life. Let me say to them today, if you exercise this as it relates to the Supreme Court of the United States, and you jeopardize that there may be a 4-to-4 tie, the result is not for the lifetime of the judge you did not seek, it is for the lifetime of this country because that is now the law of the land, that an appellate court, whether it is the Fourth or the Ninth -- not the Supreme Court -- that will be the ultimate determining factor as to what the law is that our children, our grandchildren, their children, their grandchildren will live by for their entirety."

Well, it sounds like the old Richard Burr sure would be offended by the new Richard Burr.It's worth noting that when it comes to partisan fights over judicial nominees, there's plenty of hypocrisy to go around. When it comes to senators who served during the Bush and Obama eras, at times it seems as if partisan players simply traded scripts -- and it's hard to find anyone who's been consistent throughout.But when senators like Burr talk about maintaining a partisan blockade against any Democratic nominee, simply because he or she is a Democratic nominee, he's adopting a radical posture unlike anything in the American tradition. In U.S. history, no party has ever tried a gambit this extreme.And with this in mind, the fact that Burr used to argue that the nation's judicial system couldn't possibly function with an eight-member Supreme Court, only to argue the exact opposite now, requires an explanation beyond just a rote "politics as usual" response.