Former President Barack Obama said last year that well-qualified Supreme Court candidates should be able to join the bench regardless of disagreements on policy, and his own White House spokesman said Obama regretted voting to filibuster Supreme Court nominee Samuel Alito when he was a senator.
Obama's regrets are notable as Democrats, led by Senate Minority Leader Chuck Schumer (D., N.Y.), are trying to filibuster President Trump's Supreme Court nominee, Judge Neil Gorsuch. Eight Democrats would need to join the chamber's 52 Republicans to invoke cloture and put Gorsuch forward for a confirmation vote.
However, Republicans could still institute the so-called "nuclear option" and eliminate the filibuster for Supreme Court nominees.
Justice Antonin Scalia's death on Feb. 13, 2016, left a vacancy on the Supreme Court. The White House immediately began pressuring the Republican-controlled Senate to give whoever Obama nominated a hearing and a vote.
At a press conference on Feb. 16, 2016, Obama responded to criticism that his position was "undercut" by his attempted filibuster of Alito in 2006 by saying he understood lawmakers make "strategic decisions" in votes on judicial nominees, implying that his own vote on Alito was political.
"Look, I think what's fair to say is that how judicial nominations have evolved over time is not historically the fault of any single party," Obama said. "This has become just one more extension of politics. And there are times where folks are in the Senate and they're thinking, as I just described, primarily about, is this going to cause me problems in a primary? Is this going to cause me problems with supporters of mine? And so people take strategic decisions. I understand that."
He added that Alito was confirmed to the Supreme Court regardless and there was a consensus that well-qualified candidates should be confirmed, "even if you don't particularly agree with them."
"But what is also true is Justice Alito is on the bench right now," Obama said. "I think that, historically, if you look at it, regardless of what votes particular senators have taken, there's been a basic consensus, a basic understanding, that the Supreme Court is different. And each caucus may decide who's going to vote where and what but that basically you let the vote come up, and you make sure that a well-qualified candidate is able to join the bench, even if you don't particularly agree with them."
"And my expectation is that the same should happen here," Obama added.
At a press briefing the next day, White House spokesman Josh Earnest responded to questions about Obama's filibuster by saying the president's own remarks implied regret.
"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," Earnest said. "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."
Earnest contended that Obama's opposition to Alito was "symbolic."
Obama told ABC's George Stephanopoulos at the time in 2006 that he would join the filibuster of Alito because the judge was "contrary to core American values." However, Obama simultaneously criticized the Democrats' tactics.
"I think that the Democrats have to do a much better job in making their case on these issues," he said. "These last-minute efforts using procedural maneuvers inside the Beltway, I think, has been the wrong way of going about it, and we need to recognize, because Judge Alito will be confirmed, that if we're going to oppose a nominee that we've got to persuade the American people that, in fact, their values are at stake."
"Frankly I'm not sure that we've successfully done that," Obama continued.
Nevertheless, he joined 23 other Democrats, including future Obama administration members Joe Biden and Hillary Clinton, in a failed effort to filibuster the nomination. Alito was later confirmed to the Supreme Court.
Obama's Supreme Court nominees Sonia Sotomayor and Elena Kagan both received more than 60 votes in their successful confirmations. Senate Republicans elected not to give a hearing in 2016 to Merrick Garland, Obama's eventual pick to replace Scalia, saying that in an election year it should be left up to the next administration.
The gamble paid off when Trump defeated Hillary Clinton in the general election, paving the way for him to nominate the more conservative Gorsuch.
Gorsuch impressed onlookers at his confirmation hearings last week, drawing accolades for his preparedness, geniality, and qualifications.