Interview with Nina Totenberg of National Public Radio
Totenberg. Mr. President, Judge Garland was runner-up twice before. So why now and not twice before?
The President. Well, I think Merrick Garland is one of the best judges, not just in the country, but of his generation. And it is a testimony to how good he is that, you know, he has cropped up as a potential Supreme Court justice for a very long time.
I have always been a huge admirer of his. I've always felt that the way he approaches cases — the intellect, the care to follow precedent, the consensus building — were qualities that would make him an outstanding Supreme Court justice.
This moment in our history — a time when judicial nominations have become so contentious, a time when our politics is so full of vitriol — I think particularly benefits from a man who by all accounts is decent, full of integrity, is someone who tries to hear the other side's point of view, and can build bridges.
And so although I've always believed that he would make an outstanding Supreme Court justice, it is my belief that now more than ever his voice would serve the court well, would help to burnish the sense that the Supreme Court is above politics and not just an extension of politics, and would set a good tone for restoring — or at least increasing — the American people's confidence in our justice system.
Totenberg. Did you talk to him about being "a piñata," as Sen. Cornyn put it?
The President. We had a very candid conversation. He's chief judge of the D.C. Circuit, so I assume that he either reads The Washington Post or listens to NPR, and I think had a pretty good sense of the posture that Majority Leader McConnell took immediately after Justice Scalia's passing — the notion that the Republican senators would not consider any nominee, no way, no how.
I'm sure that he is aware that, these days, massive advertising campaigns are mounted in opposition to candidates — not just for Supreme Court, but for appellate court judges.
Totenberg. But he's not — he's not a pol.
The President. No, he isn't. And so we discussed that, and I wanted to make sure that not only he felt comfortable with it, but his family felt comfortable with it. You know, for those of us who are more often in, you know, the scrum of politics, we're — we call folks like Judge Garland "civilians." And so suddenly being placed in a war zone like this is something that you want to make sure they're mindful of.
But, you know, I think the way he described it — and I'll let him, as he makes the rounds with senators, describe it himself — the way he described it is that he has loved the law for a very long time. He has loved being a judge for a very long time. He occupies the most honored position in what is often considered the second most powerful court in the land. He's got a great job.
And he is at a stage in his career where, given his confidence in his record, given the reputation that he's built in the legal community, that he is prepared I think to take on whatever unfair or unjust or wildly exaggerated claims that may be made by those who are just opposed to any nominee that I might make. Because he thinks it's important.
And I think he is convinced that he can do a really good job, partly because he has relationships with the judges that are already on the court, and he's shown himself to be a consensus builder. And he believes, rightly, that we're at a time where the more consensus we can forge, the better off we're going to be.
Totenberg. By the way, when did you offer him the job?
The President. Over the weekend.
Totenberg. Well, he's a very good actor because I had dinner with him Sunday night [at a small charity event], and he looked like — he kept just was saying he wasn't going to get it.
The President. Well, you know, I — I — that just shows his wisdom once again, because when it comes to things like getting — being nominated for the Supreme Court, it's probably always wise to not count your chickens before they're hatched.
Totenberg. But you just told me they were hatched.
The President. Well, I'm not sure about that.
Totenberg. In the heat of ...
The President. I might have called him right after dinner.
Totenberg. In the heat of a presidential campaign, how do you keep this nomination front and center, alive and prominent in the face of Republicans saying that they won't give your nominee a hearing? They clearly don't want to look rude, so they'll meet with him and tell him that they don't want to meet with him. But — but how do you keep it up there? When the Supreme Court, frankly — I've written more pieces in my life saying, "This year it may be an issue," and then it never really is.
The President. This year it may be an issue. In fact I think it is, in part because of the circus that has been the presidential campaign season so far.
I think people already are troubled by some of the extreme rhetoric that we've seen in the presidential race. I think people already are troubled by the extreme gridlock in Washington. I think people already are concerned about excessive obstructionism that goes beyond principled disagreements, but becomes a systematic "no" to everything.
And when you then have — add to that a situation in which for the first time in anyone's memory you have the head of the Senate saying, "I won't meet with a nominee; I won't provide a nominee a hearing; I will not provide a nominee a vote," and that, if, in fact, was maintained, would be the first time in the modern court where we would have a seat unfilled for over a year. That matters to people.
And so, you're right, Nina, that generally speaking, people aren't closely following Supreme Court cases unless you have a big seminal case like same-sex marriage come down. But people are following the fact that, increasingly, our political institutions are broken — and it troubles them. And this becomes I think a symbol of a process that, if Republicans stick to their current posture, promises a tit-for-tat process in which we will never have a clean nomination process on the merits, and presidents — whether they're Democrats or Republicans — are only going to be able to get their nominees through when they have their own party controlling the Senate.
At that point, the judiciary becomes a pure extension of politics. And that damages people's faith in the judiciary — because everybody understands that there's some politics involved in appointing judges, but we also expect that the judicial system can rise above the political process.
And so I — we've seen already the surveys that say, number one, people are paying attention to this; and number two — it's not just Democrats, but a sizable number of Republicans who vote against me, have said this is — this can't be the way we run our government. And what's particularly ironic is the degree to which a number of people who say they're not going to nominate somebody, claim to be people who want fidelity to the Constitution, respect for our founders' intentions.
There's nobody who would suggest that our founders anticipated that a new rule is read into the Supreme Court nomination process in which for an entire year, we don't do that because there's an election going on. George Washington nominated a couple of Supreme Court justices in his last year. And obviously George Washington had better poll numbers, I'm sure, than I did, but nevertheless if you care about original intent, I think, you know, you don't want to see this becoming — degenerating into just a pure political battle.
Totenberg. So we've reported that Republican — leading Republican senators sent a message sort of back-channel: "OK, if you appoint Merrick Garland, we — we still will oppose him now, but we would confirm him in the lame-duck session after the election if there's a Democratic president." Did that play any role in your decision?
The President. I have not had conversations like that.
Totenberg. No, I didn't say you had.
The President. What I have seen are the public statements of leading Republicans like Orrin Hatch broadly complimenting Judge Garland as a brilliant, fair jurist, who should be confirmed to the Supreme Court.
Totenberg. So did that play a role in your choosing him, the fact that Republicans really do like him?
The President. Well, there's no doubt that what played a role, as I said earlier, was that, number one, I think he's the best person for the job. Number two, I think he's a consensus builder. And the court would benefit from that at the moment.
Justice Scalia was a larger-than-life figure, and he helped to shape the dialogue and the debate. But if you think about when the Supreme Court has been held in the highest esteem and has moved the country forward in the most powerful of ways, generally it hasn't been divided just along 5-4 votes. And Judge Garland, if you look at his work on the D.C. Circuit, has been able to bring together conservatives, liberals and move them to find common ground. And I think that's a valuable quality that has been reinforced by the statements that were made by Republicans.
It certainly told me that this is somebody who is widely respected. And I said at the outset I would not use this appointment as a political symbol, as a way to score points, as a way to gin up my base. I said I would play it straight — that my goal was to actually confirm a justice who I thought could do an outstanding job. And Merrick Garland fits that bill.
Totenberg. Your base, some of them quietly said, you know, everybody on that list, except Merrick Garland, was a minority or a woman; some of them were both. You picked the oldest person by far, the only white guy, and he's sort of a centrist liberal. He's not, you know, he's not going to — this is, this is our shot to really change the debate at the Supreme Court.
What do you say to that — those folks?
The President. Well, first of all what I would say is take a look at the appointments I've made since I've been president of the United States. I've appointed as many African-Americans to the Circuit Court as any president ever; more African-American women on the federal courts than any other president; more Hispanics, more Asian-Americans, more LGBT judges than any president in history.
We actually now have a majority of women and/or minorities on the Circuit Courts, something that's never happened before. So my record of appointing a judiciary that reflects the country is unmatched.
When it comes to the Supreme Court, I've appointed two women, one Hispanic. And in each case, the good news is that I appointed the person who I absolutely thought was the best person for the job. In this case, Merrick Garland is the best person for the job.
And I have confidence that — without knowing how he's going to decide any particular case — he's going to be somebody who understands the law, understands precedent, understands the Constitution; and possesses the values that recognize the unique role of the court in preserving our rights, preserving our liberties; and making sure that the powerful get a fair hearing, but that the powerless also are heard and have access to justice.
Totenberg. What do you ask these folks in your interviews? I mean, you can't say, "So, what do you think of Roe v. Wade?" That would be improper, right?
The President. I do not do that.
Totenberg. So, I'm Judge Totenberg. I'm here for my interview. What are you going to ask me? What kinds of things do you ask?
The President. Well, sometimes I just ask about family and background and what made you want to be a judge. You learn a lot just by talking to people about what their story is.
And when you hear Judge Garland's background — when you hear that story about him as a valedictorian speaker standing up for a fellow student who was about to be censored by the parents, when you hear about the care with which he dealt with the victims and the families who had been affected by the Oklahoma City bombing — you get a sense of who that person is. And I spent a lot of time on that.
With respect to judicial philosophy, I have the advantage of having taught constitutional law, so I don't need to get into the weeds on their thinking on a lot of these cases — because I can just read their opinions and the quality of their work and I have a pretty good sense of how they approach cases.
One thing I, I do ask them is how do they generally approach a problem where the text of the Constitution might be ambiguous. What do they do to — to understand either the meaning of the text, to what extent do they draw on historical data, to what extent do they draw on their sense of how society is dealing with that problem today? You know, so you'll get some sense of their judicial philosophy.
But most of the time, by the time they get to me, you know, they've probably gone through a confirmation process before. And they have a pretty good sense of what they can talk about and what they shouldn't talk about.
Totenberg. Let me conclude by asking you sort of a devil's advocate question.
The President. Sure.
Totenberg. You've said that neither party comes to this process clean.
The President. It's absolutely true.
Totenberg. And you voted to not end debate on the Alito nomination. And if I understood you correctly at your press conference, what I thought I heard you say was, "You know, I knew that it was a meaningless vote." You got a pass from the leadership. You can do this.
But can you blame the Republicans who look at this nomination and say, "There's going to be a shift in the court if we approve this nominee, and we don't like that shift in the court." So can you really blame them for trying to prevent a significant shift in the court, hoping that they'll win the presidential nomination [sic]. And if the shoe were on the other foot, wouldn't the Democrats do the same? They called — they're all already calling it the "Biden rule."
The President. Well, a couple of things. First of all, this speech that they continually quote from Joe Biden when he was on the Judiciary Committee — if you actually read the speech, number one, he was speaking hypothetically.
Totenberg. Oh, Jesus. Oops.
The President. Should we start that one over?
Totenberg. Yeah, let's do that.
The President. Wow, Nina. You're supposed to turn off your phone.
Totenberg. I'm not — I'm supposed to be a pro.
The President. Come on.
Totenberg. Come on.
The President. The, uh ...
Totenberg. It's the office.
The President. I'm assuming you can just splice the question and I'll just answer it, so Nina doesn't have to answer — ask it again.
The President. Well, first of all, if you look at what Joe Biden actually said many years ago, he was saying if, hypothetically, there were to be a Supreme Court opening, then his advice to a president in his last year would be to not make the nomination unless he had consulted widely and arrived at a consensus candidate.
Well, you know what? That's exactly what I've done. And so there's no contradiction between what I'm doing and what Joe Biden suggested a president in my circumstances should do.
Number two, with respect to my actions when I was a junior senator, you will recall that I never said that a nominee should not get a hearing. I never said that a nominee should not get a vote. And what I also said at the time was that I was concerned about some of Judge Alito's views that I considered more troubling. But in the case of Merrick Garland, we haven't seen a substantive argument against his jurisprudence.
This is just raw politics. "We don't want somebody who's been nominated by a Democrat" — a claim that I would have never made at the time.
Now what is true, Nina, is, is that, you know, we have a divided court on a lot of important issues. Justice Scalia was a big figure who was viewed as providing a majority on conservative positions on some of the cases that came before the court. And so I understand the politics that Republican senators are dealing with, and the price they would pay if in fact they confirmed a nominee.
Here's the problem we have, though: If in fact we've gotten to the point where they can't confirm somebody because a Democratic president is nominating them, what's to stop them from saying next year, "We've got another excuse for not confirming a Democratic president's nominee"?
And at that point the process has broken down. Democrats have not been blameless in this process. You cannot point to me a circumstance in which Democrats have left a seat open when a Republican president was in office simply because they didn't like the possibility that it would change the makeup of the court.
Justice Kennedy was confirmed by Ronald Reagan, and I'm quite certain that there were a whole lot of Democratic senators who understood at the time that he was unlikely to favor their positions on a number of issues. But ultimately, he was confirmed. And he was confirmed in the last year of President Reagan's office. So we actually have evidence — we have proof, not that Democrats are perfect, but that they do at a certain point recognize that the process and the sanctity of the Supreme Court, and the integrity of the institution, not just the Supreme Court, but the integrity of the Senate, and the office of the president, requires them to do their job.
And my simple pitch to them is, be fair — not to ignore politics. I'm not demanding that Republicans vote for Merrick Garland, but do not stop the process in its tracks — because if you do, then the ever-escalating, ever-worsening problems behind not just judicial nominees, but nominations generally, are going to continue to make our government more and more dysfunctional. And at some point, it's got to stop.
A good place for it to stop is when we're talking about a Supreme Court seat, and we have an impeccably qualified candidate who the Republicans themselves have acknowledged is deserving of being on the court.
Totenberg. Are you taking this on the road?
The President. Well, you know, I'm going to make the case — I'm going to make the case for a fair process. Give Judge Garland a hearing; give him a vote. And look at the qualities of the man. That's what the American people expect. And, you know, one of the most puzzling arguments that I've heard from Mitch McConnell and some other Republicans is this notion that the American people should decide — we should let the American people decide, as part of this election, who gets to fill this seat.
Well in fact, the American people did decide, back in 2012 when they elected me president of the United States with sufficient electoral votes. And they also decided that the Republicans would be in the majority. They didn't say, "We're going to decide that you're in charge for three years, and then in the last year you all take a break." They said, "No, you're the president for four years, and Mr. McConnell, you're going to be the leader, because we've given you a majority in the Senate."
So the American people already have decided. They've already weighed in. They will have another opportunity to weigh in, so that if there is another vacancy that comes up, the next president will fill that vacancy.
The bottom line is that there has not been a coherent argument presented. The real argument is the one that you made, Nina, which is that they don't want a Democrat filling the seat, and they are worried and scared about their political base punishing them if they allow a Democrat to fill the seat.
But one of the things that's broken down in our politics is a recognition that you don't always get your way 100 percent of the time. And sometimes in the integrity of the institution and the process and governance, and the interests of the American people actually matter more than your short-term politics. They actually matter more than doing what is politically expedient. And there have been a number of times where, as president of the United States, I've had to do things that I knew were bad politics but I understood were important to the country or important to the institution of the presidency.
And I would expect that the senators who've been elected by their constituents will find in themselves the kind of respect for this incredible democratic experiment that our founders crafted, that they're not going to want to see it continue to degenerate into just a bunch of poll-driven, negative-ad-driven, polarized name-calling, because that's not what made us the greatest country on Earth.
Totenberg. Mr. President, thank you so much for your time. We appreciate it.
The President. I enjoyed it, Nina. Thank you.
Barack Obama, Interview with Nina Totenberg of National Public Radio Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/331722