Wednesday, April 04, 2012

Engaging On The Court

Greg Sargent was right.     Tuesday, he wrote

Between the nixing of Obamacare, should it happen, and the Citizens United decision, which Obama strongly opposes, you’d think the President would respond by casting the Supreme Court as a leading villain. He could hammer the Court as another symbol of the way the GOP, beholden to special interests, has consistently frustrated reform and stacked the system against ordinary Americans.

But don’t expect Obama to launch a full-blown campaign against the Court....

So expect Obama to strike an important balancing act: He’ll refrain from directly attacking the Court, while.... 

Later that day, President Obama, while apparently trying to prod the Court in a responsible direction, instead incurred controversy by remarking

I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

While centrist columnist Ruth Marcus termed it merely "rather unsettling," another Washington Post columnist, righty Jennifer Rubin, labeled it a "judicial witch hunt" and "irresponsible," presumably to distinguish it from responsible witch hunting.    (She is a conservative Republican, after all; perhaps she does believe in responsible witch hunting.)     Senate Majority Leader McConnell termed it an "attempt to intimidate the Supreme Court" (which) "falls well beyond distasteful politics"      Rush Limbaugh found the comments "beneath the office of the presidency," a startling claim for someone who considers the President a "Halfrican" whose "entire economic program is reparations."

But in fact, Sargent's prediction has come to pass, if months before he expected.     Choosing to be, as The Washington Post would editorialize, "more careful in the details and tone of his critique," Obama the following day explained

And the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.  And so the burden is on those who would overturn a law like this. 

Now, as I said, I expect the Supreme Court actually to recognize that and to abide by well-established precedence out there.  I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has.  As a consequence, we’re not spending a whole bunch of time planning for contingencies. 

The remarks were mild, though well summarized when Obama noted

It doesn’t make us weaker when we guarantee basic security for the elderly or the sick or those who are actively looking for work.  What makes us weaker is when fewer and fewer people can afford to buy the goods and services our businesses sell, or when entrepreneurs don’t have the financial security to take a chance and start a new business.  What drags down our entire economy is when there’s an ever-widening chasm between the ultra-rich and everybody else.

Even the initial remark, however, was "pretty timid stuff, indeed," according to Sargent and "more of a nudge than an attack," according to Suprreme Court historian Jeff Shesol.       Better than this weak tea would have been the following, borrowed heavily from suggestions of Digby::

As Ronald Reagan said back in 1986, 'we’ve had too many examples in recent years of courts and judges legislating. They’re not interpreting what the law says. In too many instances they have been actually legislating by legal decree what they think the law should be.' I agree with Ronald Reagan that some judges show little regard for the authority of the president, the Congress, and the states. They display even less interest in the will of the people.

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