Barack Obama Lost at the Ballot Box the Authority to Demand a Vote on Justice Scalia's Replacement

(AP Photo/Jessica Gresko)
AP featured image
In this photo taken Aug. 14, 2016, the gravesite of Supreme Court Justice Antonin Scalia at Fairfax Memorial Park in Fairfax, Va. Thousands attended Supreme Court Justice Antonin Scalia’s funeral in Washington earlier this year, but when the hearse pulled away from the church and headed to his burial site, his family asked for privacy and the Supreme Court declined to say where Scalia was being laid to rest. With the internet’s help, however, Scalia’s burial spot at Virginia’s Fairfax Memorial Park is now public. (AP Photo/Jessica Gresko)


Historical revisionism and amnesia practiced by the Democrats and their hand-maidens in the liberal media lead them to reflect back on the nomination of Merrick Garland to the Supreme Court and see nothing but naked political obstruction on the part of Mitch McConnell and the GOP in refusing to vote on Garland’s confirmation.

But it was not obstruction at all.  The context of the decision to not consider the nomination is always lost with the passage of time, or simply mischaracterized by the media and Democrats in order to justify their ridiculous outrage now over whether the Senate will vote on the nominee to replace Justice Ruth Bader Ginsburg.

On the same day that Justice Antonin Scalia passed away, February 13, 2016, Majority Leader McConnell issued a statement that the Senate would not take up any nominee by President Obama to fill Justice Scalia’s seat, and that the position would remain vacant until a new President was elected in November 2016.  McConnell’s decision — as the statement proves — had nothing to do with Merrick Garland, and it had nothing to do with Donald Trump.  McConnell’s position was 100% about Pres. Obama and the fact that the GOP controlled the Senate and the confirmation process.  But the context of that moment is crucial to understanding the “why” behind his announcment.


Merrick Garland’s name was sent to the Senate by Pres. Obama on March 16, 2016, with the clear understanding of Sen. McConnell had already said.

The nomination came as a purely political calculation.  The GOP Presidential Primary season was in full swing, and the party establishment was in chaos as Donald Trump knocked off one candidate of the GOP establishment after another, and in mid-March, the GOP was starting to come to grips with the fact that the GOP outsider was about to do what was unthinkable by winning the party’s nomination to President in 2016.

The nomination was a political ploy designed to create a dilemma for the esablishement Republicans in the Senate and the Majority Leader.  Accept that Donald Trump was an almost certain loser to Hillary Clinton in the general election, which meant that if the Scalia sent went unfilled then Hillary Clinton would change the balance of the Court by replacing Scalia with a fifth liberal justice.   Alternatively, confirm Merrick Garland as a “centrist” Justice who would be a “swing” vote in the middle of the Court capable of being swayed into the orbit of both the conservatives and liberals depending on the issue.  Scalia’s conservative vote would be traded for Garland’s undependable vote supposedly in the “middle” of the Court, but any other decision likely ended with Hillary Clinton appointing a staunch liberal to the take the seat.


This was at the start of the 8th year of the Obama Administration.  Confirming a Supreme Court nominee required the cooperation of two branches of government — the nomination is only one step in the process.  What justification was there for Obama and the Democrats to demand that the GOP Senate play along with Obama’s Machiavellian scheme to confirm a Justice that the GOP would never propose on their own?

The answer is nothing.  In the eighth year of the Obama Administration, his and Democrat party’s governance of the country had been overwhelmingly rejected by the American people.  Obama himself was personally popular, but every election that did not have his name on the ballot resulted in the Democrats being swamped at the polls.

In 2008 when Obama was first elected, the Democrats took over control of the Senate by picking up 8 seats, and with two independents caucusing with them had a near filibuster-proof 59 Senate votes. In the House the Democrats added to their small House majority by a sizeable amount, increasing their seats from 236 to 257.

But in the first midterm election of the Obama Presidency — without Barack Obama on the ticket — the GOP won a net total of 6 Senate seats, taking the chamber to a much closer split of 53-47 (including 2 independents).   On the House side, the GOP realized the largest swing of seats in a single year, winning 63 and taking over control of the House with 242 seats.  The basic approach of GOP challengers was to run against Barack Obama and Nancy Pelosi’s governance of the country.


In 2012, with Pres. Obama back on the ticket running for reelection, the Democrats gained 2 seats in the Senate, taking the majority to 55.  The Republicans held on to control of the House but did lose 8 seats in slightly narrowing their majority.

But 2014 is where disaster befell Obama and the Democrat Party.  The country was certainly possessed by Obama fatigue and gridlock that came with the two houses of Congress controlled by opposing parties.  In November 2013 Harry Reid had rewritten the Senate Rules mid-session in order to confirm appellate court judges he was not able to confirm under the old rules requiring 60 votes to end debate on a judicial nominee.  The Senate Democrats had used the same rule to hold up confirmation of appeals court judges while they were in the minority during the Bush 43 Administration.  And in the elections the next fall, the Democrats in the Senate paid the price.

The GOP gained 9 seats in the senate in 2015, beating 5 Democrat incumbents (Bergich AK, Prior AR, Udall CO, Landrieu LA, and Hagan NC) and capturing four open seats where Democrat incumbents retired (Harkin IO, Walsh MT, Johnson SD, and Rockefeller WV).  In the House the GOP added 13 additional seats, giving the GOP the largest House majority enjoyed by the Party since 1928.

In the three elections between 2010 and 2014, GOP challengers had defeated 74 incumbent Democrat members of the House.


In the same three elections, the GOP had defeated 8 Democrat incumbent Senators and taken over the seats of 5 others who retired to go from a minority of 41 to a majority of 54.  Harry Reid and the Democrats in the Senate went from a near filibuster proof 59 votes to only44 Democrats and 2 Independents.

THAT is the factual context surrounding the refusal in 2016 by the GOP in the Senate to grant to Barack Obama the opportunity to replace Antonin Scalia on the Supreme Court.

The voters HAD spoken AGAINST the idea of allowing Barack Obama — leader of a Democrat Party thoroughly and soundly rejected — the make the selection.  That was the reason for holding the seat open until the 2016 election when the voters could decide whether it would be Hillary Clinton or Donald Trump who would make the choice and whether that choice would be confirmed by a friendly or hostile Senate Majority.

The same dynamic does not exist today.  Pres. Trump and the GOP did suffer losses in the midyear election of 2018, but nothing like that suffered by the Democrats during the Obama Administration.

More significantly, the GOP remained in control of the Senate.

The American people took away from Barack Obama the justification for him to claim the entitlement to replace Justice Scalia.  He was certainly entitled under the Constitution to make a nomination, but the Senate was just entitled in the same manner to consider events and the political situation as it existed at that time in choosing to not allow the leader of the Party rejected by the people from having his selection confirmed.


That is why Judge Merrick Garland is not Justice Merrick Garland today.


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