Doubling Down: Holder Calls Obama’s Judicial Activism Criticism “Appropriate”

While the White House and the President backtracked from Obama’s recent statements regarding the Supreme Court, Attorney General Eric Holder succeeded in reigniting the controversy by calling the comments about judicial activism “appropriate.” As I noted earlier, the effort of the White House to modify the statement of the President notably did not include a retraction of the judicial activism statement. Holder’s statement appeared to reaffirm that the omission was intentional.

Holder said that the Justice Department would comply with an order to supply a letter to the United States Court of Appeals for the Fifth Circuit explaining the President’s comments. I previously stated that I do not believe that the order was an appropriate response. However, Holder is wise to simply comply and presumably repeat the statements made by government counsel in oral argument (which should have ended the matter).

Holder’s statement on judicial activism will likely only further alienate some judges and possible some justices. Of course, such comments should not affect the vote of the justices. I do not believe that Justice Kennedy is the type to be influenced by such personal or professional attacks. However, the political advantage sought by the attack posed a serious risk to the legal position of the Administration. As I noted earlier, the Administration is playing for marginal justices not just on the individual mandate question but issues like severability. Name calling cannot help that situation — or the chances for the national health care law. It is also in my view unfair to the judges (and likely justices) who view the act as an unprecedented intrusion on federalism.

I believe that the President — and the Attorney General — should take the high road on such questions and affirm that people of good faith can disagree on these questions. Even if the President is inclined to denounce the motivations and professionalism of jurists voting against the act, the Attorney General should have remained more faithful to the legal system and simply said that he does not subscribe to such a view. He is after all the chief legal officer in the federal government and owes a special duty to the rule of law. He has every right to make a passionate case for upholding the law. He was certainly correct in saying that “Courts have the final say in the constitutionality of statutes” and that “Courts are also fairly deferential when it comes to overturning statutes that the duly elected representatives of the people … pass.” However, Holder also should be a moderating force in recognizing that these are profound questions that have long divided jurists, lawyers, and citizens on the scope of federalism in our system. There are four justices on either side of the Court that consistently vote on opposing sides of constitutional issues. That does not make the conservatives any more of activists than the liberals. Both sides come of the Court with differing jurisprudential views on questions like federalism. They should hold clear views on such fundamental subjects. The question is whether their decisions are based on legitimate rationales and reasoning — even if we may disagree with their conclusions. In my view, Holder missed an opportunity — again — to separate himself from politics and defend a principle.

Source: Chicago Tribune

148 thoughts on “Doubling Down: Holder Calls Obama’s Judicial Activism Criticism “Appropriate””

  1. Citizens for Responsibility and Ethics in Washington(CREW) and National Security Archive(NSA) filed a suit against the EOP for email and records…and the judge ordered a settlement….

    my case against the EOP was for emails and documents during the same time period as CREWS and NSAs suit, but the judge ruled against me….is the judiciary subject to political manipulation…see my suit on FBI wiretapping the Supreme Court… w.voinche v. FBI, 940 F.Supp. 323(DDC 1996)….no this is Amerika….

  2. “Democrats are not your friends, no matter how scary the Republicans make themselves for your benefit.”

  3. Winston,

    Where were the Democrats when the Stupak amendment restricting abortion (any Federal funding) made its way into the health care legislation? Where was Obama? This is not an isolated case. The Democrats have evaporated like water on a hot roof whenever legislation restricting woman’s rights over their own bodies has come up. The only reason they are making any noise at all now is because it’s election time and they think they can get some political points out of it. Republicans will constantly push ever harder to the right, Democrats will constantly follow them and people like you will constantly fall for it.

    As to answering the question about the sonogram with a probe, you know full well that was a rhetorical question for which there is no answer.. Isn’t it going to be a bit impractical to insist that everyone, except you no doubt, submit to the indignity before they are allowed to differ with you?

    Democrats — whether you like it or not — have been dismal in the last decade (at least) in protecting woman’s access to safe medical abortion. Defending abortion is as taboo to Democrats in Washington now as talking about man made climate change. Democrats are not your friends, no matter how scary the Republicans make themselves for your benefit.

    Hate Obama? No, I’m disappointed, appalled, thunderstruck, angry, amazed at my own stupidity, but I have never felt hatred for Obama.

  4. BB,

    You are really a Ron Paul supporter. I bet you are a misogynist in waiting. This means you are a republican if you don’t support all of that liberal media shit and Obama. You know that you are nothing but a republican lackey!

    Get over it, you have to work, you don’t have some rich family member or a husband to live off of. I bet you don’t have a family member going to very expensive schools either. I bet you don’t have an expensive car as well. You cannot afford to be a democrat. You can get over that as well btw.

  5. Brooklyn Bridge,

    She went, in your words, from implying – It sounds as though you’re implying I’m a Republican operative because I disagree with your point of view.

    To, in your words, branding – simply because I disagree with you is a weak reason to brand me a secret operative.

    And you never answered her question. – Had a sonogram with a probe lately?

    Hmmm. Not a peep about that republican legislation. But then that’s just part of the Republican Party’s war on women and not really a big deal.

    Hate Obama, hate Obama, hate Obama.

  6. Swarthmore mom,

    It sounds as though you’re implying I’m a Republican operative because I disagree with your point of view.

    I suspect you are a fine person and that makes me even more disappointed at Obama and the kind of cynical ruthless people with whom he has stacked his administration that they manipulate people such as yourself so easily.

    You might have a legitimate bone to pick with my tone or my sarcasm, but frankly, simply because I disagree with you is a weak reason to brand me a secret operative. It’s blame the messenger. It’s not a nice insinuation, it’s beneath you, and it’s strongly suggestive that your are operating more on fear than on reason. Your faith in Obama or his administration or in the basic goodness of the Democratic party is simply unsupported by the facts, and the Democrats have blown major holes in the lesser of two evils theory. There is mounting evidence that what is going on now is a coordinated bipartisan attack on the vast financial resources of the poor and middle class in the form of social security, Medicare and housing. Not to mention what is going on in our industrial military complex.

    That you choose to ignore the growing evidence, that you choose not to follow or even acknowledge any links to responsible journalists such as Miles Mogulescu that I’ve linked to in my responses to other comments of yours elsewhere, who have substantiated much of what I’m saying does not at all make the case that I’m an operative (or that I’m not), but it is suggestive that you are refusing to observe what is actually happening.

    There is very scant evidence right now that putting Democrats in office even slows down the relentless march of the plutocracy. Don’t you sometimes wonder that there are perpetually just enough Democrats willing to go over to the dark side to get any particularly filthy job done and in those cases where even a single Democratic Senator or Representative could change the tide, by taking a real stand, not one, not a single one is ever,ever to be found? And that Obama signs it each time? Thus, when the Democrats had a full majority in both houses, had Bernie Sanders drawn a do or die line in the sand, he probably could have thrown a monkey wrench in the extension of the Bush tax cuts. Instead, he gave a long impassioned speech on Friday afternoon to a completely empty chamber save for one lone reporter with a video camera and then on Monday did absolutely nothing — not a peep — when it actually mattered.

  7. Brooklin bridge. The proof is the legislation that the republicans passed and introduced. Had a sonogram with a probe lately? As it has been pointed out before republican operatives pretending to be leftists visit this blog regularly.

  8. from Vast Left:

    Individual 1:
    GOP War on women!
    GOP War on women!
    GOP War on women!

    individual 2:
    Will chanting that Magically make Democrats stand up for Women’s rights?

    Individual 1:
    As long as it gets Dems elected, who cares?

    Individual 2:

    Individual 1:
    Oh right, Whatever…

  9. “As he campaigned across Wisconsin, Mitt Romney repeatedly praised Governor Scott Walker’s leadership, calling him a ‘hero’ and ‘a man of courage’. But with his signing yesterday of a bill make it harder for women to enforce in court their right to equal pay, Walker showed how far Republicans are willing to go to undermine not only women’s health care, but also their economic security. Does Romney think women should have ability to take their bosses to court to get the same pay as their male coworkers? Or does he stand with Governor Walker against this?” Greg Sargeant, Washington Post. We will just have to disagree on this one, Henman. The GOP war on women is too important to be ignored.

  10. Perhaps someone should give the Attorney General and the President a little history lesson on Separation of Powers. Seems our founders were quite a bit worried about this very type of action by a sitting president. Of course, the President previously criticized the Supreme Court in a State of the Union address so why not now? Simply amazing isn’t folks?

    Jeff Metz

  11. HenMan,

    I ditto your excellent points and commentary….. Thank you…..

  12. Swarthmore mom-

    On Tuesday, I voted in the Wisconsin Primary. For President of the United States, I voted for Dennis Kucinich (write-in). I was the only one in my community who did so. In November, I will also vote for Dennis Kucinich unless Barack Obama drops out of the race and is replaced by a Progressive Democrat. I will do this even if I am the only person in the United States to do so. For 3 of the reasons, see the comments above mine by Brooklin Bridge- I won’t bother to list all the other reasons, most of which are civil liberties issues and Obama’s cowardly waffling on defending Social Security and Medicare.

    As the apparent outcome of the Primaries indicates, the 2012 election will pit a Republican spineless worm against a Democrat spineless worm. I have heard your comments about Supreme Court nominees and I don’t find that compelling. What gives you any confidence that Obama wouldn’t nominate a Joe Lieberman to the Court, for example? They both seem to substantially agree on civil liberties issues as well as on using the Armed Forces of the U.S. as an instrument of foreign policy. The only reason we left Iraq was that the Iraqis would not exempt our troops from Iraqi law- otherwise Obama would have left them there for at least 2 more years.

    I expect Obama to win- if he loses it will be because of Barack Obama, not because of HenMan. This time I will not regret my vote.

  13. Romney’s a coward too. He would never have had the balls — like Obama — to assert presidential authority to terminate the lives of human beings with no judicial review what so ever.

    Romney would never have had the balls to set up the Bowles/Simpson comission and stack it with known adversaries to social security and Medicare the way Obama did. He would have known that the Democrats would never have let an attack on the social safety net pass from a Republican president but would welcome it from a Democratic one.

    Romney would have extended the tax breaks for the rich however. Man, what a low down cad. Had those tax breaks simply been allowed to expire, it would have solved the deficit in one fell swoop. Thank goodness a democratic president running on hope and change with majorities in both houses would never ever EVER sign legislation extending those tax cuts for the rich.. Um, er, Doe!

    Yes we better be careful about electing someone like Romney into office when Obama is so much better at being a Republican and at giving the Democratic stamp of approval to such toxic right wing legislation.

  14. “The Republicans are a sick joke, and their narrow ideological stupidity has left rational voters no choice in the coming presidential election but Barack Obama. With Ron Paul out of it and warmongering hedge fund hustler Mitt Romney the likely Republican nominee, the GOP has defined itself indelibly as the party of moneyed greed and unfettered imperialism.

    It is with chilling certainty that one can predict that a single Romney appointee to the Supreme Court would seal the coup of the 1 percent that already is well on its way toward purchasing the nation’s political soul. Romney is the quintessential Citizens United super PAC candidate, a man who has turned avarice into virtue and comes to us now as a once-moderate politician transformed into the ultimate prophet of imperial hubris, blaming everyone from the Chinese to laid-off American workers for our problems. Everyone, that is, except the Wall Street-dominated GOP, which midwifed the Great Recession under George W. Bush and now seeks to blame Obama for the enormous deficit spawned by the party’s wanton behavior. ” Robert Scheer truthdig

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