Earnest: Obama's Alito Filibuster Different Than GOP Objections Based on 'Substance'

Supreme Court Justice Samuel Alito smiles during the ceremonial swearing-in of Paul J. Fishman, US Attorney for the District of New Jersey, at Rutgers Law School in Newark, N.J., on Dec. 14, 2009. (AP Photo/Jeff Zelevansky)

White House press secretary Josh Earnest said that President Obama’s filibuster of Justice Sam Alito shouldn’t figure into present-day Senate delays of his nominee because Obama regrets “the approach” attempted to block Alito.

Some senators who are still serving today voted to filibuster Alito, including Sens. Barbara Boxer (D-Calif.), Dick Durbin (D-Ill.), Dianne Feinstein (D-Calif.), Pat Leahy (D-Vt.), Bob Menendez (D-N.J.), Barbara Mikulski (D-Md.), Patty Murray (D-Wash.), Jack Reed (D-R.I.), Harry Reid (D-Nev.), Chuck Schumer (D-N.Y.), Debbie Stabenow (D-Mich.), and Ron Wyden (D-Ore.).

Vice President Joe Biden, former Secretary of State Hillary Clinton and current Secretary of State John Kerry also voted to block Alito.

He was eventually confirmed 58-42 in January 2006.

“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,” Earnest told reporters today.

“So there is a pretty stark difference here. 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 does not provide an exception for election years.”

“So, if they bring it up and filibuster it, that would be consistent and OK?” a reporter asked.

“Let me keep going here, which is that in 2006, with 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,” Earnest continued. “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, there is an institutional responsibility the Republicans have. They spent years fighting, scratching and clawing to win the majority of the United States Senate. And we have talked at some length about how that comes with a certain set of responsibilities.”

That, Earnest said, is “a responsibility to pass a budget, it comes with a 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.”

Alluding to Obama’s remarks about the process yesterday in Rancho Mirage, Earnest said “he regrets the vote that he made because, frankly, I mean, as we’ve discussed, Democrats should have been in a position where they were making a public case.”

“That’s what Democrats should have done. And they shouldn’t have looked for a way just to throw sand in the gears of the process,” he said. “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.”

Earnest insisted that, unlike GOP objections to Obama’s eventual nominee and/or the prospect of confirming a lifetime appointee so close to a presidential election, “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,” he said.

Obama brushed off his attempt to filibuster Alito’s nomination because it didn’t work — the justice is “on the bench right now,” he told reporters at the ASEAN summit Tuesday.