CBS: ‘History Could Be’ on Obama’s Side for Scalia Replacement

The journalists at CBS This Morning on Monday came to the President’s aid, insisting that “history could be” on Barack Obama’s side as he fights to replace Antonin Scalia with a liberal on the Supreme Court. Without highlighting opposing interpretations, reporter Christine Brennan told her audience: “But history could be on the administration's side here. Since 1900, six Supreme Court justices have been confirmed in presidential election years.” 

She concluded, “That could spur President Obama to make a bold choice of a very liberal judge who'd face a tough confirmation.” Parroting talking points, Brennan added, “Now, White House officials say it would be irresponsible to leave this post on the Supreme Court vacant.” 

Of course, there is historical precedent for not moving on a Supreme Court nominee in an election year. As Newsmax explained

In June of that year [1968], when Chief Justice Earl Warren announced his retirement, President Lyndon Johnson nominated Associate Justice Abe Fortas to succeed him and Federal Judge Homer Thornberry to succeed Fortas.

“At  age 58, Fortas, one of Johnson’s oldest and closest advisers, could be counted on to give the court democratic leadership far into the future, even if Republicans regained the presidency in 1968, as seemed likely,” reported the late columnists Rowland Evans and Robert Novak.  
          
A combination of Republican and conservative Democratic senators charged that, with barely seven months left to his term, it was unfair for the lame duck President to make such a crucial appointment.  

Also unmentioned on CBS, Senator Chuck Schumer’s July 27, 2007 declaration that there would be no more Bush Supreme Court nominees: 

“We should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances,” Schumer said. “They must prove by actions not words that they are in the mainstream rather than we have to prove that they are not.”

In a follow-up segment, Nancy Cordes offered, “And so, even though he's got nearly a year left in his term, Republicans argue [Obama’s] time is up.”

A transcript of the February 15 Christine Brennan segment is below: 

7:06

KRISTINE JOHNSON: In the meantime, President Obama is in California to host a summit meeting with Asian leaders, and that event is being overshadow by Justice Scalia's death. And also the political fight that is sure to come when the President chooses a replacement. 

BARACK OBAMA: I plan to fulfill my constitutional responsibilities to nominate a successor in due time. There will be plenty of time for me to do so and for the Senate to fulfill its responsibility to give that person a fair hearing and a timely vote. 

[ON-SCREEN HEADLINE: Replacing Scalia; Obama Promises to Announce Nominee “In Due Time”] 

JOHNSON: Margaret Brennan is traveling with the President in Rancho Mirage, California. Margaret, good morning. 

BRENNAN: Good morning. Well, White House officials expect a nasty battle with congressional Republicans, who have already threatened to delay or defeat any nominee that President Obama picks. 

But history could be on the administration's side here. Since 1900, six Supreme Court justices have been confirmed in presidential election years. That could spur President Obama to make a bold choice of a very liberal judge who’d face a tough confirmation. Or, sources say, the President may choose a less controversial sitting appellate judge in order to win some Republican support. Some names that fit that bill, Chief Judge of the Court of Appeals Merrick Garland and two past Obama picks for the U.S. Court of Appeals, Jane Kelly and Sri Srinivasan, both of whom have already unanimously passed Senate confirmations. 

Now, White House officials say it would be irresponsible to leave this post on the Supreme Court vacant. And Norah, you should expect the President to make a decision in the next 30 days, possibly as soon as next week. 

NORAH O’DONNELL: We will be watching, thank you so much, Margaret. 

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