Josh Earnest photo

Press Briefing by Press Secretary Josh Earnest

February 17, 2016

James S. Brady Press Briefing Room

1:06 P.M. EST

MR. EARNEST: Good afternoon, everybody. Nice to see you all. Welcome back from California, those of you who traveled with the President. Let me do one quick announcement before we get started -- it's an update to the President's schedule today.

Today, the President is appointing Tom Donilon, former National Security Advisor, to serve as the chair of the Commission on Enhancing National Cybersecurity. He's also appointing Sam Palmisano, former CEO of IBM, to serve as vice chair.

The President announced the establishment of this commission on February 9th, as part of his Cybersecurity National Action Plan. That plan was the capstone of more than seven years of determined effort by this administration, building upon lessons learned from cybersecurity trends, threats and intrusions. The National Action Plan directs the federal government to take new action now and fosters the conditions required for long-term improvements in our approach to cybersecurity across the federal government, the private sector, and the personal lives of the American people.

These appointees have experienced the challenges presented by today's digital economy from different perspectives -- Tom Donilon from the threats that cyber presents to our national security and how it impacts our broader strategy on the global stage, and Mr. Palmisano from the challenges cybersecurity presents to American companies and their places of global leadership. The President expects both of these men to bring their experiences to bear and set the country on a path to ensuring cybersecurity over the next decade. The President has the highest confidence in these men being able to deliver on the critical task of providing the country a series of detailed recommendations on actions that can be taken over the next decade to enhance cybersecurity. The commission that they will chair will report to the President with its specific findings and recommendations before the end of this year.

The President will meet with these two individuals in the Oval Office later this afternoon. At the conclusion of that meeting, we'll allow the pool in to come take a picture and hear the President talk briefly about the meeting he convened with them today.

Q: What time is that?

MR. EARNEST: I think we're looking in the three o'clock hour today. But we'll have some more details coming shortly. We're going to try and get up the updated guidance in the midst of this briefing, so as soon as we get that together, you can look at that in your inbox.

So with that important piece of news out of the way, Josh, let's go to your questions.

Q: Thanks, Josh. Senator Grassley and, just in the past couple hours, Senator Cornyn have suggested that they are -- the door could be open to possibly having a hearing on the President's Supreme Court nominee that he chooses. Coming off of what we've heard McConnell and the Republicans say earlier, do you see Republicans coming around on this issue?

MR. EARNEST: Well, I think Republicans will speak for themselves in terms of what their position is. We certainly know what the Constitution says what their position should be, and that is, when there is a vacancy on the Supreme Court, it's the responsibility of the President of the United States to nominate someone to fill that vacancy and it's the responsibility of the United States Senate, as an institution, to give that individual a fair hearing and a timely vote. And we certainly would expect this Senate to do it -- primarily because the Constitution of the United States doesn't include any specific exceptions for an election year. The President is here to do his job, and the Senate should do theirs.

Q: I guess what I'm asking is, the White House has been deeply engaged in talking with members of Congress about this process and that he'd like to see a vote. Do you feel like you're making any headway in those discussions?

MR. EARNEST: Well, again, the positions that Republicans are going to express, I'll let them decide whether or not they're going to do that. It is clear what the Constitution expects of them. It's also, I think, pretty clear what the American people expect of them. The American people show up and do their job every day. They don't take days off just because they've got some other big meeting around the corner. And I think the American people expect that the Senate is going to show up and do their job, even though they've got a big election around the corner.

Q: Does the President plan to travel to the Court on Friday when Justice Scalia will lie in repose, or to attend the funeral on Saturday?

MR. EARNEST: Josh, you apparently have very good sources here in the West Wing. I'll give you a couple of updates on this. The President and the First Lady, on Friday, will travel to the Supreme Court to pay their respects to Justice Scalia as he lies in repose there at the Supreme Court. I can tell you that Vice President Biden and Dr. Jill Biden will attend Justice Scalia's funeral at the Basilica on Saturday.

Q: The President will not be at the funeral on Saturday?

MR. EARNEST: The President will pay his respects at the Supreme Court on Friday, and he'll be joined with the First Lady when he does that.

Q: Josh, there's a school of thought out there that says that if the White House looks and sees that your realistic prospects for getting a nominee confirmed are nil that it makes more sense to pick a nominee that would make more of a splash politically and could rile up Democrats when Republicans inevitably oppose it. How does the White House view that line of argument?

MR. EARNEST: Well, what we're focused on right now, Josh, is fulfilling the President's constitutional duty to nominate someone to fill the vacancy at the Supreme Court. That's what the Constitution requires. That's what the President and his team are focused on doing. As the President pointed out, there is ample time for him to make that decision and for the Senate to fulfill their constitutional responsibility to give that individual a fair hearing and a timely vote, and for that individual to ascend to the Supreme Court.

There are a lot of ways to slice and dice this, and I anticipate that we'll spend some time in the weeks and months ahead taking a look at these statistics. But it would be virtually unprecedented for there to be a vacancy -- certainly unprecedented in the modern era -- for there to be a vacancy on the Supreme Court that would interfere with two different Supreme Court terms. And that's what would happen if this Senate didn't fulfill the constitutional responsibility.

And that's why we're focused right now on what the Constitution requires of the President. And we're engaged in a process, and there's ample time but we're going to move expeditiously to work through this process and choose -- put forward the person that the President best believes can fulfill the responsibilities that come with a lifetime appointment to the Supreme Court.

Q: And on one other issue, there's a dispute between Apple and the FBI over a magistrate judge's order that they allow the FBI to access the cell phone used in relation to the San Bernardino shooting. Does the White House want Apple to comply with that order?

MR. EARNEST: Well, Josh, this is directly related to the FBI's ongoing investigation of the terrorist attack in San Bernardino, and this is an investigation that's being conducted by independent law enforcement officers. They've made a case to the court that this telephone, this iPhone that was owned by the San Bernardino Department of Public Health, but was used by one of the terrorists, that they should have access to that phone and that Apple should disable the auto-erase security feature on the phone. That's the case that they've made to the court, and the court issued their ruling saying that -- issued a ruling indicating its agreement.

So, for questions about whether or not that's appropriate, or what additional steps the Department of Justice will take if Apple chooses to appeal the ruling, I'd refer you to the Department of Justice and to the FBI because they're leading the investigation.

Q: But it plays directly into this broader issue of cybersecurity that Tom Donilon and others are focusing on, and the broader concept of whether tech companies should be forced to allow this kind of access to their products for law enforcement, despite encryption. So, in general, do you think that -- does the White House think that the FBI should be able to access that kind of information?

MR. EARNEST: I think it is important to note here, Josh, exactly what the Department of Justice is requesting. They are not asking Apple to redesign its product or to create a new backdoor to one of their products. They're simply asking for something that would have an impact on this one device. And again, for the merits of that arguments and why the Department of Justice has concluded that that's important, I'd refer you to them.

Obviously, the Department of Justice and the FBI can count on the full support of the White House as they conduct an investigation to learn as much as they possibly can about this particular incident. The President certainly believes that that is an important national priority. But it's ultimately the responsibility of these independent law enforcement professionals to do that, and that's what they're trying to do.

Ayesha.

Q: Going back to the Supreme Court, yesterday the President was asked about the possibility of using a recess appointment if the Republicans refuse to consider your nominee. He didn't explicitly rule it out. Can you say right now, has the White House ruled out the possibility of using a recess appointment? Is that totally off the table? And then also, has there been any specific outreach from the White House to Senate Republicans in terms of the Supreme Court nomination?

MR. EARNEST: Well, Ayesha, the President was asked this direct question yesterday, and I don't have anything to add to his answer. He said, "I think we have more than enough time to go through regular order and the regular processes. I intend to nominate somebody, to present them to the American people, to present them to the Senate. I expect them to hold hearings and I expect there to be a vote." So I think the President was pretty direct about what his plans are, and I just don't have anything to add to it beyond what he said.

As Josh pointed out, the White House officials have been in touch with Senate offices about this vacancy and about the process that has now been initiated under the Constitution to fill that vacancy. I can tell you that we've been in touch with both parties on this question. And I would anticipate that there will be more conversations in the days ahead.

Q: Can you say who you've reached out to?

MR. EARNEST: I don't have a list in front of me. I don't think we're going to get into sort of the details about who precisely we've been in touch with, but it's certainly been multiple offices in both parties.

Q: In the South China Sea, China has deployed [an] advanced surface-to-air missile system for a disputed island in the South China Sea. The U.S. has repeatedly called for China to stop the militarization of that area, and it doesn't seem like that's happening. Is the U.S. planning to take any additional action, any additional steps to kind of address these actions that keep happening on the part of China?

MR. EARNEST: I've seen those reports, and I've seen some of the commercial imagery that seems to indicate that China has deployed a surface-to-air missile system on a disputed outpost in the South China Sea. I think that, frankly, the announcement yesterday in the form of the Sunnylands declaration that was signed by the leaders of the ASEAN countries who met with the President earlier this week is significant. It reflects years of persistent diplomacy on the part of the United States, and it commits all of the signatories to maintaining "peace, security and stability in the region, ensuring maritime security and safety." It goes on to say that that includes "unimpeded lawful maritime commerce" as described by the U.N. Convention of the Law of the Sea, as well as non-militarization and self-restraint in the conduct of activities.

That's a pretty direct commitment by the leaders of ASEAN to this principle. And it's why we continue to urge all claimants -- the United States is not one of them -- but we continue to urge all claimants to clarify their territorial and maritime claims in accordance with international law, and to commit to peacefully manage and resolve these disputes.

The concern -- the U.S. interest is not in particular claims on any of the land features, but rather in the continued free flow of commerce in this region of the world that has significant consequences for the global economy and significant consequences for the U.S. economy. So that's why we have maintained that this is something that should be resolved peacefully among the claimants.

At the same time, the United States military has undertaken operations to indicate our view and to, I think in pretty stark terms, make clear our view that we intend to continue to fly, sail, and operate anywhere that international law allows. And our commitment to that principle is quite firm. And we certainly welcomed this commitment from the leaders of ASEAN that was produced in California just yesterday.

Q: Well, wouldn't it seem that the China action seems to fly in the face of that commitment?

MR. EARNEST: Well, China did not sign the Sunnylands declaration. And I think this is an indication, though, that the 10 or so countries in Southeast Asia who also have claims in that region of the world are committed to the approach that we have advocated, which is the peaceful resolution of these disputes in a way that doesn't ramp up the military presence or military capabilities that are located in these disputed territories.

Mary.

Q: Back on the Supreme Court. Has the President begun reviewing a short list yet? Has he started conducting interviews?

MR. EARNEST: Mary, I'm not going to be able to provide a lot of details about this process. And that may be a source of some frustration for all of us I think in the weeks ahead. Where we're able to provide some insight of that process I'll try to come prepared to do that. Today is not one of those days, unfortunately. I can confirm for you that the President and his team take this process very seriously, and understand that while there's ample time, we're going to move expeditiously to fulfill the President's constitutional responsibilities.

So that process generally has begun, but exactly where we are in that process and what the President is reviewing at this point is not something that we're going to be prepared to discuss publicly.

Q: And back on Apple and the FBI investigation. I know you said that the FBI isn't asking to open any kind of backdoor here, but critics certainly are concerned that this could be a slippery slope -- Apple, for one. Does the President share these concerns at all?

MR. EARNEST: Well, I don't think I'm going to weigh in on the President's views on this particular case. Again, this is a case that is being investigated by independent law enforcement officials at the FBI. We've talked about the President's view when it comes to encryption and protecting privacy. The President believes in robust and strong encryption. He believes in the principle of protecting the privacy and civil liberties of the American people. But, again, for the reasons that I outlined before, the question that is being debated in this particular proceeding is different than that because we're not asking Apple to redesign its products or to create a new backdoor to its products. This is a much more specific request that the Department of Justice has put forward.

Q: And just one follow-up to what the President said yesterday. He said he doesn't think Trump will be President because he has faith in the American people. He said they're pretty sensible. Is he suggesting that Trump supporters aren't sensible?

MR. EARNEST: Well, I think the President was just sort of making an observation about the process. And I know that there has been a back-and-forth here between the President and Mr. Trump, and I'm not sure I make that a whole lot more interesting by weighing in myself.

April.

Q: Josh, I want to go back to the list -- the Supreme Court list. What's different now than before when it comes to the list and the process, beyond the obvious?

MR. EARNEST: The obvious being that there is now a vacancy at the Supreme Court?

Q: No, beyond the obvious that Republicans are screaming about this with this supposedly short window -- well, it is 11 months, but they're saying it's a short window and he shouldn't do it. What's different about this process than the times before?

MR. EARNEST: The irony is, is I don't even think Republicans are suggesting that it's a short window. I think that would be a very tough case to make. The reason that would be a tough case to make is the President will be in office for almost a year, and the average time that it has taken to confirm someone who has been nominated to be a Supreme Court justice over the last 40 years or so is 67 days. So that's why you continue to hear me and the President indicate that there is ample time for this to get done.

And the argument that Republicans are making is one that's rooted in the observation that they've made that this is a presidential election year. Of course, there is a precedent for nominees being confirmed in a presidential election year -- that occurred in 1988, when then-President Reagan nominated, and Senate Democrats confirmed, Justice Kennedy in early 1988 to move to the Supreme Court.

So there's a precedent here. More importantly, there's a constitutional responsibility here. The President is going to fulfill his constitutional responsibility. The Senate should fulfill their constitutional responsibility. And if there's any doubt, then they should go back and check. They will find that there is no exception written into the Constitution about filling a Supreme Court vacancy in an election year.

Q: Okay. So with that, is the President feeling any pressure with this last -- well, with this Supreme Court nomination or appointment? Is he feeling pressure about who he has to appoint -- a minority, a woman, what have you? Because it's -- we're hearing it from all sectors.

MR. EARNEST: I think the President takes this process quite seriously. And certainly this is one of the most important decisions that any President makes -- a lifetime appointment to the highest court in the land is a weighty proposition, and these are the kinds of tough decisions that the American people expect their President to make. So it's certainly not one that President Obama takes lightly, and you can anticipate that there will be a rigorous process to ensure that the nominee is who the President believes is the best person to fill the vacancy on the Supreme Court.

Q: But does the best person have to be someone who is able to be confirmed -- does that best person have to be someone who is middle-of-the-road, or is he going to take a chance and make them more liberal than the middle-of-the-road?

MR. EARNEST: Well, I think the President was clear yesterday that he would appoint someone whose credentials for the job were indisputable. And, ultimately, that is the question that the Senate will have to ask, as the President said yesterday -- is this an individual who can serve on the Court with honor and distinction. And that will certainly be part of the criteria that the President includes in choosing who is nominee should be.

Q: Are the old lists in play?

MR. EARNEST: I'm sorry?

Q: Are the old lists from the potentials in play right now?

MR. EARNEST: Well, let me say it this way: Just because people have been considered before doesn't mean they can't be considered again.

Q: Hmm. (Laughter.) Thank you very much.

MR. EARNEST: Did I surprise you with that one? (Laughter.)

Q: No, but thank you for offering that nugget.

MR. EARNEST: I'm doing my best.

Q: So, lastly, going back to my initial question about the timing and people saying that it's just not enough time, and you're talking about he has ample time and the precedent, and just on the time issue, this might be kind of strange, but is the President's last day January 20, 2017 or January 19, 2017?

MR. EARNEST: My understanding -- Mark can correct me here because he has presided over a lot of these -- it's at noon on January 20, 2017 in which the changeover in power occurs.

Q: So even though the 45th President will take the official oath of office quietly before the actual ceremonial oath, it's not until the 20th?

MR. EARNEST: I don't know that there's --

Q: No, remember when Obama -- President Obama did the first? Remember when he did the first?

Q: It was a Sunday.

MR. EARNEST: So there are two different situations here. In 2009, the President first took the oath of office that was administered by Chief Justice Roberts in front of a large crowd that was gathered on the National Mall, and that was the first time that the President took the oath of office. There was the highly publicized verbal slip that occurred, and so a day later the Chief Justice came to the White House.

In 2013, when the President took the oath of office, Inauguration Day fell on a Sunday, and so the President had a small ceremony here at the White House to take the oath of office, again, administered by the Chief Justice. But even that was done here at the White House, in front of the pool, and was televised on live television. So I would not envision a scenario at this point that anybody would secretly take the oath of office. I think that certainly wound undermine the kind of transparency we've talked about a lot in here over the last seven years, to say it mildly.

Q: So he is President until noon --

MR. EARNEST: Until noon on January 20, 2017.

Chris.

Q: Thanks, Josh. Two questions. One, on the argument that the President has been making about it being a constitutional responsibility for the Senate to do hearings and vote, Republicans are arguing that that's a false choice; that, in fact, they only have to advise and consent, and should they not hold hearings and they're not consenting, then they've lived up to their responsibility. My question is, how does the administration respond to that?

MR. EARNEST: Well, again, I think it's actually pretty clear that the Senate has a responsibility to offer their advice and consent on a nominee from the President of the United States. And there's a well-established process for offering that advice and consent. It is to give that individual a fair hearing and to give them a timely up or down vote. And that's what's happened for centuries. And the reason it's happened for centuries is not just a coincidence. It's because that is consistent with the requirements of the United States Constitution, and the long, deeply held traditions of the United States Senate.

Q: But their argument is, constitutionally, they don't have to do any of those things -- that they can just not consent, and they don't have to do any hearings and they've done their job.

MR. EARNEST: Well, again, I think it violates the -- it certainly is inconsistent with the Constitution for the United States Senate to basically say the President shouldn't nominate someone, which I actually believe was the language that has been used by many Republicans who have commented on this. That is inconsistent with the Constitution. And it ignores the responsibility that the United States Senate has, as an institution, to consider that nominee and offer their advice and consent. Their failure to do so is inconsistent with the Constitution, but also inconsistent with the expectations of the American people.

Again, they are in office until January 3, 2017, I believe, but they should do their job in the meantime. I don't think anybody would suggest that somehow they don't have a responsibility to show up for work just because it's an election year. In fact, I think that there are some members of the United States Senate on the Republican side that have been criticized for not showing up for work in an election year. I'll let them sort of debate that back-and-forth. But I do think it illustrates that the Senate has a job to do, and the American people certainly would expect them to do it.

Q: And why should the American people side with the President's point of view here that the Senate should get to work when, as a senator himself, he filibustered Justice Alito?

MR. EARNEST: Well, listen, again, I think I would draw an important distinction here. There is a difference between the President's symbolic vote against President Bush's Supreme Court nominee and Republicans' reflexive opposition to the idea of President Obama even nominating anybody to the Supreme Court. So there is a pretty stark difference here. And what Republicans are advocating is wrong and is inconsistent with the requirements of the Constitution, primarily because the wording of the Constitution is unambiguous and doesn't provide an exception for election years.

Q: So if they bring it up and filibuster it, that would be consistent and okay?

MR. EARNEST: Well, so let me keep going here, which is that in 2006, when the President was talking about his filibuster vote at the time, he noted that the filibuster effort was not likely to succeed and that then Judge Alito was likely to be confirmed, and that reflects the responsibility of the institution of the United States Senate.

No party is solely responsible for the way that this process has become so politicized in recent years. And the point is that there's an institutional responsibility that Republicans have. They spent years fighting, scratching and clawing to win the majority in the United States Senate. And we've talked at some length about how that comes with a certain set of responsibilities. It comes with the responsibility to pass a budget. It comes with the responsibility to raise the debt ceiling. It also comes with the responsibility to offer advice and consent on the President's nominee to fill a Supreme Court vacancy. And that's the expectation that we have.

So, look, as the President alluded to yesterday, he regrets the vote that he made because, frankly, as we've discussed, Democrats should have been in the position where they were making a public case. That's what Democrats should have done. And they shouldn't have looked for a way to just throw sand in the gears of the process. And, frankly, looking back on it, the President believes that he should have just followed his own advice and made a strong public case on the merits about his opposition to the nomination that President Bush had put forward.

Q: So does this count?

MR. EARNEST: What do you mean?

Q: If you believe that -- if the President now believes that he should have made a public case and now he did not, the Republicans are not making a public case and they're just saying, we're not going to take it up.

MR. EARNEST: Well, again, I think these are two different things. The President's objections to then-President Bush's nominee were based in substance. The President considered the qualifications and worldview and credentials and record of the individual that President Bush put forward, and then-Senator Obama raised some substantive objections. And what the President regrets is that Senate Democrats didn't focus more on making an effective public case about those substantive objections. Instead, some Democrats engaged in a process of throwing sand in the gears of the confirmation process, and that's an approach that the President regrets.

And, again, he alluded to this yesterday that there's no one party that is responsible for the way this has become politicized, and the President, yesterday, acknowledged his role in that. And so the question is, how, as an institution -- knowing that these politics are going to continue -- how, as an institution is the United States Senate going to confront their responsibility?

There are still going to be pressures -- there are members of the United States Senate who are running for president, and they're going to be particular political pressures on them. That's not going to change. The question really is, what is the institution of the United States Senate going to do to make sure that the Senate's responsibilities are fulfilled under the United States Constitution? And that's a difficult question, but it certainly is a direct question that is facing those Republicans who worked hard to get the majority of the Senate so that they could be in control of the United States Senate.

They faced that question when deciding whether or not to shut down the government over Planned Parenthood. They faced that question in trying to determine whether or not they should raise the debt ceiling. And they're going to face this question now about how they fulfill their constitutional obligation to give the President's nominee to the Supreme Court a fair hearing and a timely up or down vote.

Pam.

Q: Just to clarify, on Friday, Josh, is the President attending that private ceremony that they're having at the Court on Friday?

MR. EARNEST: We'll have more details about the President's trip to the Supreme Court on Friday. But it will be an opportunity for the President and the First Lady to pay their respects to Justice Scalia, who will be lying in repose at the Supreme Court on Friday.

Q: Okay. Given the fact that Ted Cruz is saying that he will filibuster any nominee, would you agree that it's an uphill battle for the President to get a justice approved?

MR. EARNEST: Well, again, I think just looking at the math, you would know, given the fact that Republicans are in the majority in the United States Senate and given that the President of the United States is a Democrat, it means that the President is going to have to make a case -- a compelling case for a well-qualified nominee. And our expectation of Republicans in the Senate in 2016 is the same expectation that President Reagan had of Senate Democrats in 1988, which is that they would fairly consider a well-qualified nominee to the Supreme Court.

And the Senate Democrats in 1988 certainly upheld their constitutional responsibility, even in an election year, to confirm the President's nominee to the Supreme Court. And we have the same expectations, and I think the American people have the same expectations, of Senate Republicans here in 2016.

Q: But it won't be easy, will it?

MR. EARNEST: I think as I've observed on many occasions, even the straightforward, noncontroversial things are not easy when you're talking about this Congress.

Q: And speaking of that, given the rancor and venom that the President talked about, the atmosphere in Washington now, do you think that that will scare off any potential candidates who might not want to go through that kind of a process?

MR. EARNEST: Again, I don't -- my guess is no, primarily because the kind of individuals who would make good Supreme Court justices are individuals who have a thick skin, who understand that they'll have a responsibility to defend their positions and their ideas in public as they go through a rigorous vetting process. That standard has been in place for quite some time, and so anybody who is signing up for this duty is not going to be surprised.

Cheryl.

Q: So I'll just ask directly -- is Attorney General Loretta Lynch on the list to be considered as a nominee?

MR. EARNEST: Well, she appears to be on the list of many of you. (Laughter.) But I don't have any details at this point to share about a list that's maintained by the White House.

Q: And can you define any better "due time"? Is that weeks? Is that months?

MR. EARNEST: In terms of the President putting forward a nominee? I don't have a specific time frame to lay out for you. I think the best I can do is to remind you that when two Supreme Court vacancies occurred earlier in this presidency, the President put forward two well-qualified nominees after spending about a month or so deciding on who that should be. So I don't know if the time frame will be different this time around, but the recent history here at least seems relevant.

Kelly.

Q: Two things. First on the Court, following up on Jim's question, would the President consider the fact that a nominee would be subjected to a lot of scrutiny and might not ever rise to be a part of the Supreme Court, and that could be damaging to a career if you were put through that process and don't become a part of the Court?

MR. EARNEST: I've actually -- just in terms of the coverage of this, I've seen people sort of speculate this both ways -- that there are some people who say, well, after going through this process and getting beat up by Republicans and facing unreasonable partisan opposition, that that could have a negative impact on somebody's longer-term career prospects. On the other hand, I've seen some people observe that running into that wall of unreasonable partisan obstruction from Republicans only serves to elevate the credentials of this individual and could eventually turn them into a cause célèbre even on the campaign trail.

You can imagine a Democratic nominee running around out there saying, you saw how well so-and-so performed in the confirmation hearings; elect me President and we'll get them on the Supreme Court.

So you can imagine how this plays out both ways. I think what the President is focused on right now is making sure that he puts forward the person that he believes would be the best person to fill the vacancy on the Supreme Court.

Q: And today, New York officials are expressing a lot of concern about cuts to funding that they would use for counterterrorism measures. The Mayor is speaking out; Senator Schumer; the Police Commissioner. Would there be any change in the administration's view on reallocating that money for terrorism use by New York when we're in a constant threat environment?

MR. EARNEST: This administration's investment in making sure that communities across the country, including New York, to fight terrorism and to protect the homeland are ironclad. And I think all you have to do is take a look at the numbers to indicate that this administration is serious about its commitment to homeland security.

Right now in the DHS funding that is provided to New York, there is $600 million that's sitting in that account. And what this administration has proposed to do is to put another $255 million or so into that account this year. This year's contribution into that account is almost twice as much as New York officials have spent out of that account over the last two years combined. So there are ample resources that are available, and those ample resources are available and provided by the Obama administration because of our ironclad commitment to the safety and security of New York and communities all across the country.

I would point out that the amount of funding that is devoted to protecting New York and making sure that law enforcement officials in New York have the resources that they need is higher than the amount of money that's provided to local communities across the country. We understand that New York is the largest city in the country. We understand that New York certainly is a high-profile target of terrorists. That would explain precisely the kind of commitment that this administration has made to homeland security in New York.

I will also just say that, at some point, Senator Schumer's credibility in talking about national security issues, particularly when the facts are as they are when it relates to homeland security, have to be affected by the position that he's taken on other issues. Senator Schumer is somebody that came out and opposed the international agreement to prevent Iran from obtaining a nuclear weapon. He was wrong about that position, and most of his Democrats disagreed with him in taking that position. And when people look at the facts here when it comes to funding for homeland security, they'll recognize that he's wrong this time, too.

Q: Wow! (Laughter.)

Q: I understand the President was unhappy with Senator Schumer's position on that, but has the White House failed to properly -- given that context to New York officials, including Mayor de Blasio and the Police Commissioner, that they have such a different view of how the funding is being apportioned?

MR. EARNEST: This information has been provided to New York officials. I understand that the news conference that they convened today as part of basically an annual event -- but apparently, in this case, they didn't let the facts of the matter have an impact on the scheduling of this year's event.

Mark.

Q: On the Scalia funeral, will Vice President Biden be delivering a eulogy on Saturday?

MR. EARNEST: I don't know all of the details about Vice President Biden's participation in the funeral on Saturday. But as we have more details, we'll provide them.

Q: And back on recess appointments, from what the President said yesterday and from what you said today, it sounds like you're deliberately trying to leave options open to the possibility of a recess appointment by not definitively ruling it out. Is that a misinterpretation of what you're saying?

MR. EARNEST: Well, I think the President tried to be as direct as he could yesterday about what our intent is. Our intent is to nominate an indisputably qualified individual to fill the vacancy on the Supreme Court. And our expectation is that the United States Senate will fulfill their constitutional responsibility to give that individual a fair hearing and a timely up or down vote. And that's what our plan is right now.

Q: But you're not ruling out a recess appointment?

MR. EARNEST: Well, I think the President, in answering this question, tried to be as direct as he possibly could about what our intentions are.

Q: I've noticed that President Obama hasn't made any recess appointments in four years. Can you say why?

MR. EARNEST: Well, what we have tried to do, with, admittedly, mixed success, is to try to find common ground with Republicans to ensure that individuals that the President would like to appoint to work for him here in the administration and make sure that the government functions well -- we've tried to work with Republicans in the Senate to make that happen. And the President explained -- described some frustration yesterday about the way that Republicans have engaged in that process.

But, look, that all being said, I think everybody understands that a lifetime appointment to the Supreme Court is different than that. And every President -- and this is probably true of even President Washington -- had some frustrations with Congress and the pace at which they were acting on their nominations to important jobs in the administration. And we certainly have a strong case to make about how Republicans have taken that obstruction to a new level. But the fact is, I think everybody understands why a lifetime appointment to the Supreme Court is different.

And that's why we're going to continue to make a strong case about the President fulfilling his constitutional responsibilities and why the Senate should fulfill their constitutional responsibilities, and that further dragging this into the politicized context of other administration nominations is certainly not what the framers of our Constitution intended.

Q: To your knowledge, there hasn't been any secret agreement between the President and Senate leaders about him not making any recess appointments over the last four years?

MR. EARNEST: Well, what we have tried to do is to work in good faith with Republican leaders to see the President's appointees confirmed by the Senate so they can do the important work of the American people. That has been an ongoing process and I'm sure that process will continue. But I would draw a distinction between that process and the process described by the Constitution for filling a lifetime appointment to the Supreme Court.

Chris.

Q: Josh, would you rule out the possibility that President Obama will appoint himself to the Supreme Court? (Laughter.)

MR. EARNEST: That is a novel one. I think what I will say is that the President, himself, has said in the past that while he obviously holds in high esteem those who dedicate their lives to serving the country on the Supreme Court, that he envisions something different for himself once he leaves the presidency. So I haven't asked him that direct question, but I think all of the available evidence indicates that that option is highly unlikely.

Q: Do you mean to say by that -- you said that the President is going to pick somebody whose credentials for the job were indisputable. Does that mean that the President believes that his credentials for such a position would be in dispute?

MR. EARNEST: Well, again, I think what we have found from Republicans is they have not let facts get in the way of raising disputes about the President and his credentials. There's even one particular Republican who has made himself famous for that. So I -- but I think I'll just leave it there.

Q: Well, I have one more question about something that's a little more typical for me. In South Dakota, the legislature sent to the governor a legislation seeming to discriminate against transgender students by prohibiting them from using the public restroom consistent with their gender identity. Critics say that's going to be in conflict with the administration's position of Title IX, which prohibits discrimination on the basis of gender and the interpretation of that to apply to transgender students. Does the President oppose this legislation?

MR. EARNEST: I don't know that the President has looked carefully at this particular piece of legislation. And I don't have a legal analysis to present to you about how enactment of that legislation would have an impact on things like Title IX. What I can just say, more generally, is that the kind of values that this administration has championed have been values that have been dedicated to inclusiveness and non-discrimination, and even respect for other human beings. And there are many elements of this legislation that you've described that seem to come into sharp conflict with those basic American values.

Lynn, nice to see you today.

Q: Nice to see you. Thank you. Change of subject.

MR. EARNEST: Okay. We've covered a lot of subjects today.

Q: Tomorrow the Black Hawks are coming for their third visit to the White House.

MR. EARNEST: Yes, they've been on quite a run lately.

Q: And I'm wondering if you could tell me -- I don't know where hockey fits in, in Obama's sports interests. I know obviously he's a big, big basketball fan. Do you think he ever will take in a game when he still has time in the White House? There's a little time left. And what do you think he'll be able to say when a team comes a third time to the White House?

MR. EARNEST: Well, listen, this particular President is a sports fan. And I think we all appreciate the amount of athleticism and skill that's required to excel in that sport. Maybe the next President will be somebody who was born in Canada and will have an even greater appreciation for that sport and the skill that it requires. (Laughter.)

But this President is certainly proud of his hometown Chicago Black Hawks and is looking forward to welcoming them here. I don't think there are too many other sports teams that have come to the White House three different times for winning championships. The UConn women's basketball team comes to mind as a team that might have broken that record. But certainly the President is proud of his hometown team and looking forward to welcoming them here.

Q: And where does hockey fit in his sports interests?

MR. EARNEST: Well, the President is not a regular viewer of the sport. I think even casual fans of hockey can appreciate, again, both the skill and athleticism that's required to engage in that sport, but also appreciate how exciting playoff hockey is, and that brand of hockey is something that I think causes television ratings to spike in playoff time for hockey. But, look, the President is proud of his team and is looking forward to seeing them here.

George.

Q: As long as we're on sports, the President has said that he is not always as sensitive as he should be on optics. Can you rule out him going golfing on Saturday instead of the funeral?

MR. EARNEST: I don't have a sense of what the President's plans are for Saturday. The President obviously believes it's important for the institution of the presidency to pay his respects to somebody who dedicated three decades of his life to the institution of the Supreme Court. And the President gave some pretty thoughtful words in discussing Justice Scalia's service on the Supreme Court not just Saturday night but also yesterday in his news conference. And Friday will be an important opportunity for the President and the First Lady to pay their respects to Justice Scalia.

And I think that's important not just on a personal level, but also on an institutional level -- recognizing that it's an opportunity not just for this President to pay his personal respects to this individual who served for three decades on the Supreme Court, it also is an appropriate opportunity for the individual who is serving as President of the United States to offer respect to somebody who served in a third branch of government. And it will be an important moment. And we'll have some more details for you about the President's plans for both Friday and Saturday.

Juliet.

Q: Quick question following up on what you said was the symbolic vote that the President took regarding Justice Alito and what's happening now. Afterwards, you talked about how he regretted what he did, how it contributes to polarization here. Is there a distinction -- would you say that there is a distinction between what the President did and what's happening now because it was clear that his actions would not actually prevent a justice from taking the seat, whereas in this case, that's an open possibility? Or would you consider them roughly equivalent in terms of contributing to the polarization surrounding judicial nominees in the United States?

MR. EARNEST: Well, I actually think that what Republicans are doing now are different than what President Obama -- then-Senator Obama did in 2006 in two important ways. And you mentioned one of them. The first is, the President was clear at the time in 2006 as he was casting the vote that his vote was not one that was going to have any impact on the outcome. Senator -- I'm sorry, then-Judge Alito had sufficient support in the United States Senate to ascend to the Supreme Court, and the President was direct at the time that his vote was symbolic.

But here's the second thing. The President did have substantive reasons to oppose Judge Alito's nomination. And right now, the opposition that Republicans are reflexively expressing is devoted to the idea of the President even nominating somebody to fill that vacancy. That's the difference. And that is what is so directly contrary to the requirements of individuals that are outlined in the Constitution of the United States.

Q: And just one question, keeping in mind that neither you nor I are constitutional lawyers. Senator McConnell's staff would point out that there's nothing specific in the Constitution that dictates hearings or a timely vote on a Supreme Court nominee by the President. Could you just flesh out a little more what the interpretation is of this White House of specifically of what the Constitution dictates beyond the idea of simply advise and consent?

MR. EARNEST: Again, I'm not constitutional scholar, but there have been hundreds of people who have served on the Supreme Court, and best as I can remember, that's the process that they've all gone through. So, again, I'd be surprised that anybody is suggesting that that's not part of the constitutional responsibilities of the United States Senate.

I will say I feel pretty confident in telling you that even without having these facts at hand, I'm sure there are some people who ran for the United States Senate, saying that they were going to have an impact on the process of confirming judges. That certainly is something that Senate candidates observe that is part of the responsibility of individual United States senators.

And I guess the other part that's relevant here is we actually have a recent and relevant historical analogy to draw. Democrats in 1988 found themselves in the same position; they were in the majority in the Senate and there was a Republican in the White House. There was a vacancy on the Supreme Court, and there was a question that they faced about whether or not they were going to vote in a presidential election year to confirm the President's nominee to the Supreme Court. And even though they were not in the same party as the President, they fulfilled their constitutional responsibility, and they did it even though it was an election year. And our expectation is that Senate Republicans would do the same.

And, again, the fact that Senate Democrats did it right in 1988 doesn't absolve the entire Democratic Party over the course of history from the role that they have played in contributing to a politicized process. President Obama acknowledged yesterday that he played a part in that.

But the responsibility lies with the institution of the United States Senate. And Senator McConnell and other Republican leaders worked tirelessly, campaigning across the country, raising money, giving stump speeches, holding rallies, working weekends to try to get back the majority of the United States Senate. And I'll just remind you that on the day after they succeeded in that effort, on the day after the election, Senator McConnell wrote what is now, I believe, probably in his mind, an infamous op-ed in the Wall Street Journal that was headlined "Now We Can Get Congress Moving Again." This is a basic function of Congress. And he was acknowledging the role that the majority has in getting Congress moving again.

He's in charge of that institution. That institution has a constitutional responsibility. And that institution -- the American people certainly have the expectation that that institution will fulfill that duty.

Bob.

Q: Josh, the Senate is away this weekend, actually, so we've heard from relatively few rank-and-file Republicans about how they feel about this issue. Does the President believe that --

MR. EARNEST: Funny how their cell phones somehow in these kinds of situations don't work, or at least don't get answered quite as quickly.

Q: Well, does the President believe that with time, or whatever, there can be a softening of the stance among at least rank-and-file Republicans regarding this nomination? Does he think time may be on his side with this?

MR. EARNEST: I think the President's expectation is that the institution of the United States Senate can and should fulfill its constitutional responsibility. And there are no loopholes in that responsibility. There's no election year loophole. There's no loophole for a situation in which the President may not share the judicial philosophy of the previous Supreme Court justice. There's no loophole in the Constitution for a Supreme Court nominee who might have an impact on the balance of the Supreme Court. The Constitution is clear about what the expectations are of the institution of the United States Senate. That's consistent with the President's expectations, and it's consistent with the expectations of the American people.

Q: I'm not suggesting obviously how rank-and-file Republicans should act. But does the President think that there maybe shouldn't be a rush to this --- to name someone that quickly while pressure may mount on Republicans to move forward with this?

MR. EARNEST: The amount of time that the President and his team will devote to nominating an individual will be dedicated to making sure that the right person has been chosen for this important job. And that is the factor that will be driving the timeline for this decision. And as soon as the President and his team have concluded that they have chosen the right person for the job, then we'll make that nominee -- we'll put forward that nominee. And we hope that the Senate will fulfill their responsibility to ensure that that individual receives a fair hearing and a timely yes or no vote.

Angela.

Q: Josh, you mentioned how different this might play on the campaign trail among Democratic candidates. Has the White House been in touch with either or both of the Clinton and Sanders campaigns as you move forward with working on a nominee?

MR. EARNEST: I'm not aware of any specific conversations that have taken place thus far about who the President is going to choose with either of the candidates present on the Democratic side. Look, I think people are going to ask the Democratic candidates what their views are on this process. They'll ask them primarily because it's a relevant question to ask. They're running for the job -- they're running to be given the responsibility, starting in January of 2017, to fill vacancies on the Supreme Court. So it makes sense that they would be asked about this process. Then-Senator Obama was asked about it a lot in 2007 and 2008. And I think that's a natural question for people to ask.

Q: Given that this could -- we could easily perceive a scenario that this could spill over until next year -- you mentioned the possibility of having a vacancy through two Supreme Court terms -- does the President or his staff plan to discuss this with the Democratic campaigns? Is that an important part of his strategy as he works over the next few weeks?

MR. EARNEST: I wouldn't anticipate that this would require discussions with campaigns -- again, primarily because this is a responsibility of the sitting President of the United States. And there are a whole host of individuals on the Republican and Democratic side who are running to have this responsibility given to them in January of 2017. But right now, this responsibility rests with the President.

And there will be a tendency -- it's natural and even understandable that there will be some politics that will have an influence on the process. That started a long time ago, and I'm confident that will be the case here. The question is whether or not the United States Senate -- and in this case, I'm talking about Senate Republicans who have the responsibility for running the institution at the United States Senate -- whether or not they're prepared to choose their constitutional duty over narrow partisan political considerations. It's an open question right now. Their early indications are not particularly good, considering that Republicans have suggested that the President shouldn't even bother nominating somebody. But hopefully cooler heads will prevail.

Q: And then, lastly, following up on Ayesha's question on the South China Sea, obviously we saw China -- we saw confirmation, as you were speaking, from the State Department that China has moved missiles to the disputed island. It was just yesterday that ASEAN released its statement that was very similar to what we've seen from ASEAN statements in the past, and it didn't specifically mention China. Did the President want a stronger statement, potentially one that actually mentioned China, to come out of ASEAN? Or was he satisfied with the words that were chosen to put out yesterday?

MR. EARNEST: Look, we're more than satisfied. I think we're quite pleased to see the leaders of 10 or so Southeast Asian nations, many of whom do have claims on land features in the South China Sea, put forward a coherent and unified explanation of what they're committing to. And what they're committing to a set of principles that will promote the peaceful resolution of disputes.

That is clearly within the best interest of the United States; it's in the best interest of our economy; it's in the best interest of our national security. We also believe that it benefits those countries in the same way. So we're pleased to see that there's widespread agreement among the United States and our ASEAN partners for resolving these disputes.

Rich.

Q: Thanks, Josh. Will the President this week sign the North Korea sanctions bill? And in discussing North Korea, earlier this month The Washington Post Editorial Board claimed the President's strategic patience has failed with North Korea due to the recent North Korean provocations. Even beyond if the President does sign the sanctions bill, does that warrant a greater response from the U.S.?

MR. EARNEST: Well, Rich, I can tell you that, as you've heard me say on a number of occasions, the administration is deeply concerned about North Korea's recent actions and their recent provocations. And I can confirm that the President does plan to sign H.R. 757, which includes sanctions measures against North Korea and will serve to increase pressure on North Korea. That's a goal that Congress stated, and it's a goal that we share. I don't know precisely when the President will sign that bill, but we'll let you know. But our plan is to sign it.

When it comes more broadly to our approach to North Korea, I think we've been pretty clear about what our strategy is, which is to work effectively with our allies in the region -- more importantly, South Korea and Japan -- but also with our partners in the region, like Russia and China, who have some influence over the North Korean regime. And we've presented a united front. And President Xi stood in the Rose Garden just last fall and made clear that China would not tolerate a nuclearized Korean Peninsula. That was an important declaration. And it certainly means that the North Korean regime will continue to be isolated until they begin to take steps closer in the direction of not just the United States and South Korea, but even countries like China, with whom they have a vital relationship.

Q: On Apple, you said earlier that the White House will back up law enforcement. Does that mean that law enforcement, when it comes to these arguments between data security and national security that law enforcement should get what it wants?

MR. EARNEST: I think I was pretty clear about that statement applying to this particular situation; that the Department of Justice and FBI investigators have been given a serious responsibility, which is to investigate an act of terrorism in San Bernardino, California, at the end of last year. And they're conducting that investigation, and they're going to do that independently. But they can count on the support of the White House and the President, who has identified that that investigation is a priority. So we're going to support them as they do their important independent work.

But I'd just reiterate what I said before, which is that there is a debate -- an intense debate right now about how to balance the need for encryption and cybersecurity, and protecting privacy and the need to protect the national security of the United States. I think the President has described how he approaches that question. But, fortunately, the question in this instance is much more narrow. And I think, just taking a quick look at the judge's ruling, I think the judge thought it was a pretty straightforward answer.

Q: This doesn't create a marker for further cases? I mean, I understand we're talking about just this one case, but this one case could set an example very easily for cases in the future.

MR. EARNEST: This case doesn't require Apple to change their -- to redesign some element of their software or to create a new backdoor. This is a very specific request the Department of Justice has made, and the judge agreed with them.

Q: Minneapolis President Neel Kashkari says that possibly one of -- something that he might push in the future would be breaking up the big banks. Was that a missed opportunity in Dodd-Frank, do you think? Because it's been such an important element in the Democratic debate.

MR. EARNEST: Well, we value the independence of the Fed here, so I'm a little limited in offering up a direct response to what Mr. Kashkari had to say. I can just tell you more generally that the President was a leading advocate of Wall Street reform and was happy to sign it into law, and just as importantly, was rigorous about the implementation of the regulations that that law required.

And the reason for that is we saw an aggressive effort on the part of Wall Street banks and other large financial institutions to try to chip away at the law's protections in the regulatory process. And that is something that we have resisted. It has contributed in some cases to taking a little longer than expected to implement rules. But the fact is we have put in place a financial architecture that does make sure that taxpayers won't be on the hook for bailing out banks who make risky bets that go bad.

That's progress. That's a good thing for our economy. It certainly is a good thing for middle-class families. At the same time, we've been mindful of the need to have an architecture that would not stifle innovation. We continue -- one of the reasons that the U.S. economy is the envy of the world is we have a dynamic financial system where a variety of institutions can get access to capital. That's a good thing. That's an important thing for innovation; it's an important thing for the economy; it certainly is an important thing for small business. But we also want to make sure that we've got regulators in institutions in Washington, D.C. that are looking out for the interest of middle-class families.

And that's a top priority, and that's why the President -- when historians take a look at his legacy, I'm confident that his success in passing and implementing Wall Street reform will be among the prominent aspects of that legacy that will be widely discussed.

Q: Even with big banks intact?

MR. EARNEST: Even with the big banks intact, because of the reforms that we've put in place -- things like higher capital requirements for banks and other steps that we have taken that have -- again, according to the stress tests that also were conducted -- that have put those institutions on more stable financial footing. And if we get into a situation where those institutions get weaker we've got steps that we can take to further insulate the American economy and the American people from the fallout.

So we've learned a lot of important lessons since the worst economic downturn since the Great Depression. Many of them relate to the kinds of basic investments that are critical to the success of our economy and to middle-class families, but some of them relate to the way in which our financial system should be regulated to make it more stable and to not leave taxpayers on the hook for financial institutions whose risky bets go bad.

I'll give you the last one.

Q: Thank you, Josh. In about three hours, the Pope is going to be celebrating Mass on the border between the U.S. and Mexico, in Juarez. And Donald Trump has come out and said basically that the Pope is in the pocket of Mexico, he wants to keep the border the way it is -- Mexico does -- because they're making a fortune, and we are losing. I'm wondering if the White House has any comment.

MR. EARNEST: I don't have any direct response to Mr. Trump's comments. I will just say more generally that I was one of those who was fortunate enough to be on the South Lawn of the White House when Pope Francis visited last fall, and it was clear even from the brief remarks that he delivered here, that he's a man of deep faith and he's quite passionate about what he's called to do and what that faith calls him to do. And certainly his commitment to social justice and looking out for those who are less fortunate are things that -- are priorities that he has set for himself, not just because he wants to cultivate his own image or to score political points, but rather because he feels called to serve those people.

And I think it was pretty evident that his passion and his personal motivation through his faith we're authentic. And I certainly wouldn't call it into question at all.

Thanks a lot, everybody. We'll see you tomorrow.

END 2:15 P.M. EST

Josh Earnest, Press Briefing by Press Secretary Josh Earnest Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/312101

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