As I wrote the other day, President Obama said something really stupid about how “unprecedented” and “extraordinary” it would be if the Supreme Court overturned a law passed by a democratic majority in Congress. He has now tried hard to walk back that statement and replace it with something more accurate and nuanced. But an appeals court panel actually demanded an official explanation from the DOJ:
In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president’s bluff — ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom…
In the hearing, Judge Smith says the president’s comments suggesting courts lack power to set aside federal laws “have troubled a number of people” and that the suggestion “is not a small matter.”
The bottom line from Smith: A three-page letter with specifics. He asked DOJ to discuss “judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation.”
“I would like to have from you by noon on Thursday — that’s about 48 hours from now — a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the president,” Smith said. “What is the authority is of the federal courts in this regard in terms of judicial review?” …
Kaersvang replies yes, and Smith continues: “I’m referring to statements by the president in past few days to the effect, and sure you’ve heard about them, that it is somehow inappropriate for what he termed ‘unelected’ judges to strike acts of Congress that have enjoyed — he was referring to, of course, Obamacare — to what he termed broad consensus in majorities in both houses of Congress.”
In asking for the letter, Smith said: “I want to be sure you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts, through unelected judges, to strike acts of Congress or portions thereof in appropriate cases.”
What Obama said was absurd but this is pure grandstanding by the judge. Unfortunately, the DOJ’s response letter to this demand was more grandstanding, and flat wrong as well.
Referring to the health care case, Holder wrote to Smith, “The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.”
Holder went on to explain that Mr. Obama’s remarks were in line with the established belief that it is appropriate for the Supreme Court to pay heed to Congress.
“While duly recognizing the courts’ authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress,” Holder wrote. “The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments… The courts accord particular deference when evaluating the appropriateness of the means Congress has chosen to exercise its enumerated powers, including the Commerce Clause, to accomplish constitutional ends.”
Nonsense. Obama didn’t say that the courts should show deference to the legislature in this particular case; that would be a perfectly reasonable argument. He said that the mere act of overturning a democratically-passed law would be unprecedented and extraordinary — it would be neither, of course — and therefore wrong. But in politics, you can never just admit you were wrong. You have to pretend that you really said something more reasonable. He said something dumb; own up to it, for crying out loud.
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Chiroptera
April 8, 2012 at 9:37 am (UTC -4) Link to this comment
But in politics, you can never just admit you were wrong. You have to pretend that you really said something more reasonable.
Unless you are a contemporary US conservative. Then you can never admit that you were right; you have to pretend that you really said something completely crazy and flat out wrong.
Chiroptera
April 8, 2012 at 9:41 am (UTC -4) Link to this comment
Oops. I forgot the main question I wanted to ask:
By “demand,” can a court order a politician in another branch to provide an explanation of remarks they made in public?
Or by “demand,” did the panel actually write a strongly worded memo on letterhead expressing its extreme displeasure over the remarks and requesting a clarification?
jamessweet
April 8, 2012 at 9:42 am (UTC -4) Link to this comment
Yeah, this is just another demonstration of how everything that Obama does or says is completely blown out of proportion. Obama’s comments were dumb, but they were also par for the course for politician-speak. We should expect better of our politicians, of course, but we also shouldn’t act like it’s some shocking new development for a politician to say something silly like this.
That all of a sudden this particular little jab at judicial independence is becoming a multi-day news story, it’s very telling.
Michael Heath
April 8, 2012 at 10:35 am (UTC -4) Link to this comment
Ed writes:
I remain baffled on why politicians don’t follow this advice. Your opponents are going to hate on you regardless; turning molehills into mountains. All I see is upside by taking responsibility for one’s gaffes, where the president’s defender, I think it was his press secretary, returned partisan criticism with a weasly partisan defense. Far better to rise above partisanship and admit fucking up, and then go on the make the very cogent argument which was at the core of the president’s argument when he made lied about the history of the court.
John Hinkle
April 8, 2012 at 10:40 am (UTC -4) Link to this comment
To which the administration replied, “Single spaced or double spaced?”
stuartsmith
April 8, 2012 at 10:55 am (UTC -4) Link to this comment
Elections are about appeals to emotion, not reason. The winner is, almost uniformly, the one who does the best job of presenting themselves as an alpha male. Admitting that you were wrong about anything tarnishes your alpha sheen, and degrades people’s ability to see you as a leader. Claiming to have been right, even when you were obviously not, is quite simply the behaviour we expect from the type of people who prefer to have in charge of things.
There is very little that is rational involved in elections. That’s why the results of virtually every election in the last 80 years or so can be called with better than 90% accuracy by a pannel of politically naive ten year olds, based solely on pictures of the candidates.
Pieter B, FCD
April 8, 2012 at 11:13 am (UTC -4) Link to this comment
@John Hinkle
Reports at the time said he specified single-spaced.
Reginald Selkirk
April 8, 2012 at 11:18 am (UTC -4) Link to this comment
Here’s a short explanation someone in their position ought to be able to understand: fucking freedom of speech.
Michael Heath
April 8, 2012 at 11:48 am (UTC -4) Link to this comment
Jamessweet writes:
It’s ironic that President Obama is getting called out for his dishonesty on this matter when his opponents continually make equivalent and far worse arguments while it’s relatively rare for him to be dishonest (“relatively” being a key operative descriptor). His rhetoric is getting media attention because it’s coming from a non-conservative, i.e., President Bush constantly lied like this and rarely was called-out on it.
So while I agree this is ‘par for the course’ for conservatives, I don’t think that’s true when it comes to this president or non-conservatives in general. There are some liberals in Congress who suffer from the same affliction as conservatives, Rep. Maxine Waters being one example, but those liberals don’t wield the power we see in the Republican party where this behavior isn’t rare but defines modern-day conservatism and because conservatives now dominate the GOP, the Republican party itself.
felix
April 8, 2012 at 12:22 pm (UTC -4) Link to this comment
Here’s an example of a politician simply admitting a mistake:
http://www.huffingtonpost.co.uk/2011/07/29/louise-mensch-i-probably-_n_913065.html
It works!
Who Knows?
April 8, 2012 at 1:13 pm (UTC -4) Link to this comment
I once respected judges, thinking that to become a judge they would have to be intelligent, well educated and fair minded to have gotten to that position. I no longer think that. Judges can be just as stupid as anyone else in spite of their education and experience.
Wesley
April 8, 2012 at 6:45 pm (UTC -4) Link to this comment
I listened to the oral arguments in this case, and the judge was obviously grandstanding. He interrupted the poor AUSA before she had finished her first sentence in a case tangentially related to the ones currently in SCOTUS to address Obama’s words and demand and explanation. However, I thought it was fair, as Obama’s words were really that stupid.
The best part, of course, was the 3-page, single-spaced homework assignment the judge demanded of the (at this point lost for words) woman and the AG’s office, with “specific reference” to Obama’s words. The actual memo from Holder contains no specific references to Obama’s words, of course, as Obama’s actual words were clearly false; instead, it just mentioned that his comments were “consistent” with the outlined precedent. Which is flatly wrong, and left me kind of hoping the judge would hand the memo back marked up in red ink and demand revisions.
So yes, a silly dispute from a judge on his soapbox, but a notable and entertaining exchange nonetheless.
Wesley
April 8, 2012 at 6:51 pm (UTC -4) Link to this comment
@Chiroptera:
Probably, if the politician is a party to the case, and the comments were regarding the case in an attempt to affect the ultimate verdict. Since Obama’s comments were regarding a different case (before SCOTUS, not the 5th Circuit), the judge’s authority seems more tenuous here. However, I doubt the lawyers would be really eager to personally take on a judge, and were quick to do whatever he requested.
Short answer: the court can ask for whatever it damn well pleases.
Reginald Selkirk
April 9, 2012 at 9:05 am (UTC -4) Link to this comment
What a mensch.
fastlane
April 9, 2012 at 1:19 pm (UTC -4) Link to this comment
I think the DOJ should have taken the tact along the lines of:
“We were employing the same rhetorical devices used by those on the political rightwing to demonstrate their hypocrisy in using the courts to overturn legislation that was lawfully passed by congress. Now, if the courts wish to ask what those various rightwing organizations mean by the terms including, but not limited to ‘activist judge’, ‘black robed tyrants’, or ‘unelected officials’, we would be happy to provide the court with references.”
That would have given me a happy. =)
Appeals Court Demands Explanation for Obama's Statements … | Krispy Hut
April 8, 2012 at 12:01 pm (UTC -4) Link to this comment
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