President Obama Named Judge Merrick Garland As His Nominee To The Supreme Court. On March 16, President Obama named Merrick Garland, the chief judge of the United States Court of Appeals for the District of Columbia Circuit, to fill the vacancy on the Supreme Court. Garland has served on the D.C. Circuit since 1997. [The New York Times, 3/16/16]

Media Use False Comparison To Claim Obama And Biden “Started” Precedent Of Obstruction

CNN's Chris Cuomo, Citing Obama's 2006 Vote To Filibuster Alito Nomination, Says, “Democrats Have Argued From The Same Perspective That We're Hearing The Republicans Do Now.” On the March 17 edition of CNN's New Day, host Chris Cuomo claimed that “Democrats have argued” against Supreme Court nominations “from the same perspective that we're hearing the Republicans do now,” saying, " Then-Sen. Barack Obama in 2006 argued against election year appointments, against then-Judge Samuel Alito when he was being nominated." Cuomo asked White House chief of staff Denis McDonough if the administration was “trying to have it both ways”:

CHRIS CUOMO (HOST): Then-Senator Barack Obama in 2006 argued against election year appointments, against then-Judge Samuel Alito when he was being nominated. Chuck Schumer, Joe Biden, many Democrats have argued from the same perspective that we're hearing the Republicans do now. Are you trying to have it both ways?

DENIS McDONOUGH: No, I think we're trying to do what the Constitution requires the president to do in this instance, which is to submit a nominee when there's a vacancy, and requires the Senate to do, which is to do its job, give him a hearing, give him a vote, and get him on to the court. Now, I don't remember the president arguing against -- making the argument you just suggested, Chris. Instead what I remember what happened with Justice Alito and Justice Roberts is that they had meetings, they had hearings, they had votes, and then they were confirmed to the Supreme Court. We should be afforded Judge Garland, a person of unquestioned excellence, remarkable experience, including leading the federal effort against -- in looking into the Oklahoma City bombings. He should be afforded that same constitutional set of responsibilities. So we look forward to the Senate doing just that.

CUOMO: I'm referring to when then-Senator Obama in 2006 was trying to filibuster the Senate confirmation vote on the nomination of Samuel Alito. You remember that process. I understand what you're saying about still having meetings, though.

McDONOUGH: However, I do -- no, no, let's be clear on exactly what happened at the time. There was meetings, there were hearings, there were votes, and there were then several votes on the Senate floor, including that vote to end debate and then a vote to make sure that he got on to the Supreme Court. So, we would like to see the exact same process. It's not that we would like to see it; this is what the Constitution requires. And senators should work the full six years of their time in office. The average Supreme Court nomination, Chris, is completed in 67 days from announcement to confirmation, and that's exactly what -- they have plenty of time to do that in this instance as well. [CNN, New Day, 3/17/16]

CNN's Gloria Borger: Mitch McConnell “Made It Very Clear To The Democrats That It's Their Fault” Because Of Obama's Past Vote To Filibuster Alito. On the March 16 edition of CNN's Anderson Cooper 360, CNN chief political analyst Gloria Borger quoted Senate Majority Leader Mitch McConnell's statement, saying “Mitch McConnell made it very clear to the Democrats that it's their fault, because back in 2006, Barack Obama, when he was a senator ... decided that they could filibuster Justice -- now-Justice Alito”:

GLORIA BORGER: I will tell you, though, that Mitch McConnell knows an awful lot about the Constitution and they believe that there are no limits on how the Senate discharges its authority to advise and consent, which means that they don't have to do anything, and they -- that's their interpretation of the Constitution. It's perfectly valid. There's another valid interpretation of the Constitution because it is not written in the Constitution. And Mitch McConnell made it very clear to the Democrats that it's their fault, because back in 2006, Barack Obama, when he was a senator, and other senators decided that they could filibuster Justice -- now-Justice Alito, and he is effectively saying to them, you started it. Right, but this is his argument to them. You guys started it. [CNN, Anderson Cooper 360, 3/16/16]

CNN's Jake Tapper: “Republicans Say President Obama Previously Played Politics With Supreme Court Nominees Put Forth By President George W. Bush.” On the March 16 edition of The Lead with Jake Tapper, host Jake Tapper asserted that “Republicans say President Obama previously played politics with Supreme Court nominees put forth by President George W. Bush.” In a conversation with presidential adviser Valerie Jarrett, Tapper also invoked “the Biden rule,” again echoing Republican talking points that Vice President Biden did not support nominating a judge to the Supreme Court in 1992 when he was a senator:

JAKE TAPPER (HOST): Republicans say President Obama previously played politics with Supreme Court nominees put forth by President George W. Bush by filibustering now-Justice Samuel Alito -- voting to do so anyway -- and voting against Chief Justice John Roberts. Both of them quite qualified. Republicans say, why should Senate Republicans act any less politically than then-Senator Obama did?

VALERIE JARRETT: Look, the fact of the matter is is that Justice Roberts is on the court today. The last time we were in an election year under President Reagan, the chief justice was already there. We know that during Reagan's election year 93-0 the nominee was approved. This is a time when Vice President Biden was chairman of the Judiciary Committee. And we were able to move forward. So we've done this in an election year before, there's no reason why we can't do it now. So again --

TAPPER: On the Senate floor, Majority Leader Mitch McConnell invoked what he called the Biden rule as previous precedent -- you talked about when Senator Biden was chairman of the Judiciary Committee. Take a listen to what then-Senator Biden, chairman of the Judiciary Committee in 1992, argued about how President H.W. Bush should not name a nominee. Take a listen.

[...]

Isn't that just the Republican position today?

JARRETT: The fact of the matter is, Justice Kennedy was approved under Chairman Biden 93-0 when the Democrats controlled the Senate, and when a Republican president, in an election year, nominated him. So the track record, regardless of phrases being taken out of context, is clear. There is no precedent for not moving forward in an election year and they need to do it. [CNN, The Lead with Jake Tapper, 3/16/16]

CNN's Wolf Blitzer: “If It Was Good For The Democrats Then To Make These Kinds Of Statements During An Election Year, In the Case Of Biden, Why Can't The Republicans Do That Now?” On the March 16 edition of CNN's Wolf, host Wolf Blitzer highlighted the fact that then-Sen. Obama “filibustered the nominee” in 2006. He also pointed to Biden's 1993 remarks, adding that “if it was good for the Democrats then to make these kinds of statements during an election year, in the case of Biden, why can't the Republicans do that now?”:

WOLF BLITZER (HOST): When President Obama was a U.S. senator, congresswoman, as you know, back in 2006 he filibustered the nominee, Justice Alito -- who's now Justice Samuel Alito, something he now says he regrets. And when Vice President Biden was a U.S. senator back in 1992, he said President Bush -- and I'm quoting him now, “should consider following the practice of the majority of his predecessors and not name a nominee until after the November election is completed.” So, if it was good for the Democrats then to make these kinds of statements during an election year, in the case of Biden, why can't the Republicans do that now?

REP. DEBBIE WASSERMAN-SCHULTZ: Well, let's be clear. When Barack Obama was filibustering, he had that opportunity because there was a nominee that was being given a hearing. So, I mean, they have the perfect right to filibuster, to debate it, to do anything they want while letting the process unfold. But to suggest that they aren't even going to grant courtesy meetings to his nominee, to not have hearings, to not take this nominee through the process, vote the president's nominee down if that's what they choose to do. But they have a senior Republican who has clearly in the past said Judge Garland was well-qualified, that he could do what he could to help him get confirmed, now he's back-pedaling -- this is Senator Hatch. This is blatant, brass-knuckles politics. [CNN, Wolf, 3/16/16]

Fox's Sean Hannity: “Wasn't [Obama] One Of The Few Senators To Ever Filibuster A Supreme Court Choice, In The Case Of Justice Alito?” On the March 16 edition of Fox News' Hannity, host Sean Hannity claimed that President Obama was “one of the few senators to ever filibuster a Supreme Court choice, in the case of Justice Alito.” Fox News legal analyst Peter Johnson Jr. agreed, saying, “Nothing makes sense in that White House”:

SEAN HANNITY (HOST): This is a tipping point for the court.

PETER JOHNSON JR: It is.

HANNITY: So, the question is, as Obama talked all consensus today, I'm thinking, wait a minute. Isn't this the guy that said Justice Roberts is extremely qualified for the position, and then went against him? And wasn't he one of the few senators to ever filibuster a Supreme Court choice, in the case of Justice Alito?

JOHNSON: Nothing makes sense in that White House. [Fox News, Hannity, 3/16/16]

Fox's Kevin Corke: “The GOP's Position Is Fortified By Previous Statements Made By The President And Vice President When They Were In The Senate.” On the March 16 edition of Fox News' Special Report with Bret Baier, Fox News White House correspondent Kevin Corke claimed that “then-Senator Barack Obama wanted to slow the process for President Bush's nominee” and that “in 1992, then-Senator Joe Biden unwittingly created the so-called Biden rule”:

KEVIN CORKE: The GOP's position fortified by previous statements made by the president and vice president when they were in the Senate. In 2006, then-Senator Barack Obama wanted to slow the process for President Bush's nominee saying, “I will be supporting the filibuster because I think Judge Alito in fact, is somebody who is contrary to core American values.” And in 1992, then-Senator Joe Biden unwittingly created the so-called Biden Rule. [Fox News, Special Report with Bret Baier, 3/16/16]

Fox's Andrea Tantaros: McConnell “Should Continue On The Biden Rule” And Focus On How “President Obama Filibustered Past Nominees.” On the March 16 edition of Fox News' Outnumbered, co-host Andrea Tantaros insisted that McConnell “continue on the Biden rule” and keep mentioning that “President Obama filibustered past nominees”:

ANDREA TANTAROS (CO-HOST): Peter's right. No constitutional requirement for the Senate to take it up. He should hammer that home. He should continue on the Biden Rule, Biden's own words. And also the filibuster Peter mentioned, that President Obama filibustered past nominees. [Fox News, Outnumbered, 3/16/16]

But Obama Opposed Alito On His Merits, Rather Than Refusing To Consider Any Nominee, As Republicans Are Currently Pledging To Do

White House Press Secretary Josh Earnest: “These Are Two Different Things.” In a February 17 press conference, White House Press Secretary Josh Earnest was asked about President Obama's decision to filibuster the nomination of Samuel Alito while in the Senate in 2006, in the context of Republicans' pledge to block any Supreme Court nominee. Earnest responded, saying “That is an approach the president regrets,” but added, “These are two different things” because Obama's filibuster was “based on substance” and was “symbolic because [Alito] had the votes to be confirmed”:

President Obama “regrets” filibustering the nomination of Supreme Court Justice Samuel Alito in 2006, his top spokesman said Wednesday, though he maintains that the Republican opposition to his effort to replace Justice Antonin Scalia is unprecedented.

“That is an approach the president regrets,” White House press secretary Josh Earnest said.

Obama and the Democratic senators who joined him in filibustering Alito “should have been in the position where they were making a public case” against the merits of his nomination to the high court instead, Earnest said.

“They shouldn't have looked for a way to just throw sand in the gears of the process,” he added.

As a senator from Illinois, Obama and 23 other senators attempted to stage a filibuster to block a confirmation vote on Alito, one of former President George W. Bush's picks to serve on the bench. The filibuster bid failed and Alito was confirmed.

Conservatives have seized on Obama's filibuster vote to accuse him of hypocrisy for criticizing Republicans for saying the next president, and not Obama, should nominate Scalia's successor.

But Earnest said the GOP is going further than Obama did in pledging to not consider any nominee the president puts forward. 

“These are two different things,” the spokesman said.

[...]

And he said Obama's decision to filibuster was “based on substance” whereas the GOP's blanket opposition to any Obama nominee is purely political. The president has yet to choose a nominee to replace Scalia.

[...]

“I think what's fair to say is that how judicial nominations have evolved over time is not historically the fault of any single party,” Obama said Tuesday. “This has become just one more extension of politics.” [The Hill, 2/17/16]

ABC News: Obama Supported Filibuster Of Alito's Nomination After Considering His Record And Past Votes And Determining He Was “Contrary To Core American Values.” Then-Sen. Obama supported the filibuster of Alito's nomination to the Supreme Court after considering Alito's past decisions and record, according to Obama's 2006 interview with ABC's George Stephanopoulos. Obama said he would "'be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values, not just liberal values, you know. When you look at his decisions in particular during times of war, we need a court that is independent and is going to provide some check on the executive branch, and he has not shown himself willing to do that repeatedly.'" According to ABC News:

In January 2006, then-Sen. Obama joined 24 colleagues in a futile effort led by Sen. John Kerry, D-Mass., to filibuster the Supreme Court nomination of now-Justice Samuel Alito.

On January 29, 2006, Mr. Obama told George Stephanopoulos on “This Week” that he would “be supporting the filibuster because I think Judge Alito, in fact, is somebody who is contrary to core American values, not just liberal values, you know. When you look at his decisions in particular during times of war, we need a court that is independent and is going to provide some check on the executive branch, and he has not shown himself willing to do that repeatedly.”

Mr. Obama did seem to express some reserve about using the filibuster process, which in common parlance refers to a procedural Senate maneuver requiring 60 votes to end debate and proceed to a vote.

“I think that the Democrats have to do a much better job in making their case on these issues,” then-Sen. Obama said. “These last-minute efforts using procedural maneuvers inside the Beltway, I think, has been the wrong way of going about it, and we need to recognize because Judge Alito will be confirmed that if we're going to oppose a nominee that we've got to persuade the American people that, in fact, their values are at stake and frankly I'm not sure that we've successfully done that.” [ABC News, 5/30/09]

And Biden's Remarks Called For A “Compromise,” And Referred To A Hypothetical Vacancy By Resignation, Not A Vacancy Caused By Death

Joe Biden: Claims That He Opposed Filling A SCOTUS Vacancy In An Election Year Are “Not An Accurate Description Of My Views.” In a February 22 statement, Vice President Joe Biden said his 1992 comments were about “a hypothetical vacancy” and that in fact he “encouraged the Senate and the White House to 'work together to overcome partisan differences,'” which “remains [his] position today.” Biden also highlighted his record as chairman of the Senate Judiciary Committee, pointing out that “he presided over the process to appoint Justice Anthony Kennedy, who was confirmed to the Supreme Court in a presidential election year.” As reported by The New York Times on February 23, Biden's aides also pointed out that “he had been warning against filling a vacancy created by a voluntary resignation of a justice rather than a vacancy created by an unexpected death. In any event, no such vacancy occurred”:

Vice President Joe Biden released a statement Monday saying an excerpt of a speech he gave in 1992 does not accurately portray his views on the filling of a Supreme Court vacancy during an election year and was taken out of context.

Nearly a quarter century ago, in June 1992, I gave a lengthy speech on the Senate floor about a hypothetical vacancy on the Supreme Court," he said in the statement.

Some critics say that one excerpt of my speech is evidence that I oppose filling a Supreme Court vacancy in an election year. This is not an accurate description of my views on the subject.

[...]

But Biden said in the statement Monday that in that same 1992 speech, he encouraged the Senate and the White House to “work together to overcome partisan differences to ensure the Court functions as the Founding Fathers intended.

”That remains my position today," he said.

Biden then touted his record as Judiciary Committee chairman, claiming it's “hard to beat.” He said he presided over the process to appoint Justice Anthony Kennedy, who was confirmed to the Supreme Court in a presidential election year.

“While some say that my comments in June 1992 contributed to a more politicized nomination process, they didn't prevent the Senate from fulfilling its constitutional duties, because there was no vacancy at the time,” he said in the statement.

“During my career on the Judiciary Committee, I ensured the prompt and fair consideration of nine Supreme Court Justices and the current Senate has a constitutional duty to do the same.” [The Hill, 2/22/16; The New York Times, 2/23/16]

New York:  Biden Did Not Advocate “Flat-Out Blocking The President From Any Nomination, However Moderate Or Well-Qualified.” As explained by New York magazine's Jonathan Chait, “never before in American history has the Senate simply refused to let the president nominate anybody at all simply because it was an election year,” and claims to the contrary are “demonstrably false.” Chait added that attempts to equate past Democratic positions with the current Republican obstructionism also fail because “the clear fact is that [Democrats] didn't kill that system and they didn't create the new one that is taking its place. The current Senate Republicans did”:

A second example of Democrats allegedly advocating the current Republican position comes from recently unearthed 1992 remarks by Joe Biden, then a senator. But Biden was not advocating a blockade of any nomination by then-president George Bush. He was insisting that Bush compromise ideologically. “I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate,” Biden said. “Therefore I stand by my position, Mr. President, if the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter.”

It is certainly true that Biden, like Schumer, was demanding broader latitude for the Senate. Both these remarks are within the historic tradition of senators tussling over how much say their chamber should have in the ideology of a new justice. But neither of them advocated flat-out blocking the president from any nomination, however moderate or well-qualified.And maybe the old system, in which social norms dictate that the Senate allow the president to put his ideological imprint on the Court, is simply untenable in a polarized age. Maybe that system was bound to perish. (That's the case I made.) And maybe the Democrats would have wound up becoming the party to kill that old system if they found themselves in the position Republicans currently occupy. But the clear fact is that they didn't kill that system and they didn't create the new one that is taking its place. The current Senate Republicans did. [New York, 2/23/16]

Politico: In Biden Speech Highlighted By Republicans, He “Called For A 'Compromise' Pick” Like Obama Has Offerd. In a February 22 Politico article, Sarah Wheaton explained that the excerpts of Biden's remarks which “Republicans seized on ... ignored a passage ... where Biden called for a 'compromise' pick”:

In the aftermath of Antonin Scalia's death, Senate Majority Leader Mitch McConnell was quick to say that any nominee to fill the vacancy should wait until after the coming election.

The clips and quotes Republicans seized on, however, ignored a passage buried deep in the transcript where Biden called for a “compromise” pick, much as he's done in the past week.

“I believe that so long as the public continues to split its confidence between the branches, compromise is the responsible course both for the White House and for the Senate,” Biden also said at the time. “If the President consults and cooperates with the Senate or moderates his selections absent consultation, then his nominees may enjoy my support as did Justices Kennedy and Souter. But if he does not, as is the President's right, then I will oppose his future nominees as is my right.” [Politico, 2/22/16]