CHICAGO — President Obama returned Thursday to the institution where he forged his academic expertise in constitutional law — the University of Chicago Law School — to make the case that confirming his current nominee for the Supreme Court is the best way for the nation to uphold its founding principles.
“If you start getting into a situation in which the process of appointing judges is so broken, so partisan that an imminently qualified jurist cannot even get a hearing, then we are going to see the kinds of sharp partisan polarization that have come to characterize our electoral politics seeping entirely into the judicial system,” he warned.
“And the courts will be just an extension of our legislatures and our elections and our politics,” he continued. “And that erodes the institutional integrity of the judicial branch. At that point, people lose confidence in the ability of the courts to fairly adjudicate cases and controversies.”
The carefully orchestrated setting — a question-and-answer session with students and faculty members, as well as judges from the U.S. Court of Appeals for the 7th Circuit and other local jurists, hundreds of miles from Washington — was aimed at underscoring the president’s argument for filling a vacancy on the nation’s highest court. To highlight the predicament of U.S. Appeals Court Judge Merrick Garland, Obama’s nominee, the White House invited some of the judge’s family and friends, including his sister Jill, to attend Thursday’s discussion.
But it comes at a time when Senate Republican leaders are increasingly confident that their political gamble to block Garland’s nomination will be able to withstand a sustained Democratic attack.
Two GOP senators who said they were open to hearings reversed themselves under pressure from conservative activists; two others met with Garland and have suggested action on his nomination, but their views have not proved influential with the Republican conference.
“I think it’s safe to say that there will not be hearings or votes,” Senate Majority Leader Mitch McConnell (R-Ky.) said Tuesday.
But administration officials, as well as Senate Democrats, said they see the process as one that, in the words of White House press secretary Josh Earnest, “slowly but surely is moving forward.”
The president took pains to describe Garland as a potential unifying figure, given the praise he’s won in the past from Republicans. “What a good moment for us to have someone who is respected on both sides,” he said.
But McConnell, speaking on the Senate floor Thursday morning, delivered a preemptive attack on Obama’s speech and his nominee. He dismissed characterizations of Garland as a moderate as “just a useful piece of spin that has been dutifully echoed across the expanse of the left and in the media for years” and said his confirmation would create “a far-left Supreme Court.”
“I’m sure he’ll gloss over the fact that the decision about filling this pivotal seat could impact our country for decades, and it could dramatically affect the most cherished constitutional rights, like those contained in the First and Second amendments,” McConnell said. “I’m sure he’ll continue to demand that Washington spend its time fighting on one issue where we don’t agree rather than working together on issues where we do.”
Obama sat onstage before an audience of more than 270 people with professor David Strauss, a former colleague who has argued before the Supreme Court 18 times. It marked the first time he had returned there since being elected president, and the crowd included several other members of the faculty from the time when Obama was teaching there between 1992 and 2004.
University of Chicago law professor Geoffrey Stone, who served as the school’s dean and initially brought Obama on as a law and government fellow, said it made sense that the president would return to his academic roots to argue for Garland’s confirmation. Asked whether he would win public support for such a vote, Stone said, “It really depends on how educable and open-minded you think the American people are at this moment, and with this president.”
For those Americans who are inclined to support Obama, or even remain neutral, Stone added, “They would be interested in hearing this.” But he said it “would sadly be treated with complete scorn and dismissal by everyone on the right, and that’s a significant portion of the population.”
While Obama urged law students to hold on to their idealism during his visit, telling a group sitting in an overflow room before his speech, “You really are able to make an incredible difference in the lives of people day in and day out, if that’s what you want,” some of those same students expressed skepticism about his message on the confirmation fight.
Trey Chenier, a second-year law student in the overflow room, said that the debate over filling the vacancy is “a purely political decision that doesn’t have anything to do with what the Constitution says.”
“His pick was probably politically driven, and the decision not to have hearings is a political decision,” said Chenier, a 22 year-old from Anchorage who described himself as a “left-leaning” independent. Referring to Senate Republicans, he added, “It seems like they have the right not to fill a vacancy.”
Still, Democratic strategists said that putting Obama back into his professorial role — particularly in Chicago, not far from Garland’s suburban home town of Lincolnwood — could bolster an appeal aimed at swing voters who will be decisive in November’s elections.
And next week, Garland will meet with three of GOP senators up for reelection who are particularly attuned to current voter sentiment: Sens. Kelly Ayotte of New Hampshire, Rob Portman of Ohio and — crucially — Charles E. Grassley of Iowa, who as Judiciary Committee chairman holds sole power to call hearings on Garland’s confirmation.
“The most vulnerable Republicans are those who are up for reelection, and many of them are returning home now to a steady chorus of questions — not just from Democrats but from independents as well — as to why they are refusing to do their job,” said Sen. Richard J. Durbin (D-Ill.), the minority whip, after meeting with Garland on Wednesday. “I don’t think it’s going to end. This is a symbol of obstructionism that people loathe in Washington.”
Durbin added that while a couple of Republicans have reversed themselves on the issue of whether to hold confirmation hearings, “they may be stopping Merrick Garland, but they’re not winning before the court of public opinion. . . . So as they continue this approach, they are going to pay the price. Senators who are up for reelection may find this a very personal issue before it’s over.”
But in a signal that Democrats might already be thinking about an alternative plan, Durbin said there were other legislative maneuvers that “we are actively considering” and that a determination on how to proceed could emerge in the coming weeks. Democrats have thus far refrained from holding up legislation or other Senate business to gain leverage on the court fight.
An ultimate step would be to force a floor vote on Garland without committee action — a move that would almost certainly fail but would attract attention and put those vulnerable Republican incumbents on the spot. A Democratic leadership aide said that is being considered as a last resort, one that would not be deployed for months.
“They’re just trying to keep the buzz alive, because they realize that we’re not going to change our position,” said Sen. John Cornyn (R-Tex.), the No. 2 Republican leader, of the potential procedural moves. “They’re just trying to exhaust all possibilities, and that would represent the exhaustion of the last possibility.”