Obama’s 2005 Blog Post on SCOTUS Good Advice for Today’s Republicans

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President Obama Delivers Statement On Plan To Close GITMO Detention Facility
A certain young senator over a decade ago offered Democrats some perspective on how to deal with SCOTUS nominations that's germane to his SCOTUSBlog post today. Photo: Chip Somodevilla/2016 Getty Images

Regular readers of that fine online watering hole for all things Supreme, the SCOTUSblog, were probably startled Wednesday morning by a guest post from a former constitutional scholar named Barack Obama. On reflection, it makes sense he chose this wonky but accessible venue to lay out his talking points on the criteria he will use in selecting a Supreme Court nominee whom Senate Republicans have already announced they will block. 

This is not, however, Obama’s first blog post, or even his first blog post about Supreme Court nominations. Back in 2005, during his first year in the Senate, he took to the virtual pages of Daily Kos to address progressive activists who were angry at Democratic senators who did not go to the mattresses to stop the confirmation of John Roberts as chief justice. Obama himself voted against Roberts, but did not choose to support a filibuster. So he was partially defending himself against the then-common netroots charge (still popular among many Bernie Sanders supporters) that Democrats in Washington were surrendering to the evil right-wing foe without a real fight. 

What makes Obama’s 2005 essay interesting now, however, is a certain through-the-looking-glass quality. Substitute Republican for Democrat and conservative for progressive in his post, and he’s offering the very Republicans pre-rejecting his own SCOTUS nominee some pretty good advice:

There is one way, over the long haul, to guarantee the appointment of judges that are sensitive to issues of social justice, and that is to win the right to appoint them by recapturing the presidency and the Senate.  And I don’t believe we get there by vilifying good allies, with a lifetime record of battling for progressive causes, over one vote or position.    I am convinced that, our mutual frustrations and strongly-held beliefs notwithstanding, the strategy driving much of Democratic advocacy, and the tone of much of our rhetoric, is an impediment to creating a workable progressive majority in this country….

According to the storyline that drives many advocacy groups and Democratic activists - a storyline often reflected in comments on this blog - we are up against a sharply partisan, radically conservative, take-no-prisoners Republican party.  They have beaten us twice by energizing their base with red meat rhetoric and single-minded devotion and discipline to their agenda.  In order to beat them, it is necessary for Democrats to get some backbone, give as good as they get, brook no compromise, drive out Democrats who are interested in “appeasing” the right wing, and enforce a more clearly progressive agenda.  The country, finally knowing what we stand for and seeing a sharp contrast, will rally to our side and thereby usher in a new progressive era.

In case you don’t recognize it, Obama is accurately portraying — again, in a mirror — the “theory of change” that Ted Cruz articulates every day.

A plausible argument can be made that too much is at stake here and now, in terms of privacy issues, civil rights, and civil liberties, to give John Roberts the benefit of the doubt.  That certainly was the operating assumption of the advocacy groups involved in the nomination battle.  

I shared enough of these concerns that I voted against Roberts on the floor this morning.  But short of mounting an all-out filibuster – a quixotic fight I would not have supported; a fight I believe Democrats would have lost both in the Senate and in the court of public opinion; a fight that would have been difficult for Democratic senators defending seats in states like North Dakota and Nebraska that are essential for Democrats to hold if we hope to recapture the majority; and a fight that would have effectively signaled an unwillingness on the part of Democrats to confirm any Bush nominee, an unwillingness which I believe would have set a dangerous precedent for future administrations – blocking Roberts was not a realistic option.

As you may know, Obama went on to support a filibuster against the confirmation of Bush’s second justice, Samuel Alito — a step he now says he regrets. But that doesn’t necessarily undercut his 2005 argument that tactical rigidity is the enemy of strategic success.

[T]o the degree that we brook no dissent within the Democratic Party, and demand fealty to the one, “true” progressive vision for the country, we risk the very thoughtfulness and openness to new ideas that are required to move this country forward.  When we lash out at those who share our fundamental values because they have not met the criteria of every single item on our progressive “checklist,” then we are essentially preventing them from thinking in new ways about problems.  We are tying them up in a straightjacket and forcing them into a conversation only with the converted.

And that’s the sort of reasoning that movement conservatives denounce as RINOism when it is articulated — a rare thing these days — among Republicans.

Obama Blogged on SCOTUS in 2005, Too