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
SwM,
Of course it’s the old one. Up to old tricks. Marginally less cryptic.
But repeat reading of what he addressed to me, shows well-known half-uttered allusions which only the “absolute elite” to which he feels he belongs, will be able to understand.
To say that I don’t understand perturbs me not at all.
Crappola is not very accessible. Nor are most of the terms of agreement which we gladly consign our asses to Google (hear me boys?) and others.
Nor the laws which take away our homes, our voting rights, our integrity, etc.
I wonder in fact if AY knows what the different parts of his body know what the brain wants.
Am I nasty enough now?
idealist707,
FYI. I was in the Navy for four years right after high school. I completed my education after that.
id707,
Then you should be aware that “Uncle Tomism” carries an intrinsic value load as a racially rooted term. As AY alluded to “sycophant” is an accurate word to describe that relationship that carries no racial baggage. And although race and competence in Thomas may not be an issue with you, competence and elitism in Thomas are issues with me and many others. I don’t think it is unfair to say that when you point to “Uncle Tomism” you are ultimately pointing to sycophantic behavior which is exactly what elitism represents. As to why competence with a SCOTUS justice isn’t apparently an issue for you, that is for you to puzzle.
SwM
I regard my self as super-liberal, without defining it.
I am not a realist, but my heart, and thus I assumed that of other liberals was greatly disappointed in Obama’s record so far.
What they actually think, I have no idea.
Thanks for the heads up.
We’ll see if he can pull enough independents to make the sale. That’s part of why who Romney picks as VP is so critical. As to women voters? I see that as having less to do with Obama being intrinsically attractive as a choice than it does with the disastrously bad tactical decision by the GOP to openly attack women’s rights in the manner which they have. In the history of boneheaded and blatantly stupid tactical decisions, that one has to rate right up there with invading Russia during the winter.
And thanks for the compliment. 😀
To GeneH and others who may be confused as to the “race” referral
NEITHER RACE NOR COMPETENCE ARE MY ISSUES.
Take them if you wish.
I used the rise through Uncle Tomism, as a model for the ways ALL persons use , doing whatever they can to RISE. And holding the position and “flagging” (literally in Thomas’ case) is only one way to RISE. SO DO WE ALL, regardless of origin and other characteristics where prejudice may play in. Exception? Yes, amuse yourselve with those if you will.
Thomas made his rise by sweeping himself in the folds of the Confederate flag, a NOT common action on the part of blacks. It paid off, for him. It is not necessarily defining of him, but such a contention can be worth discussion.
Does this view have merit? Obviously that is what I want to address.
It is unfortunate that we, in general, have such terms as “Uncle Tomism”, which fall readily on the tongue, and which are seldom congruent with the points the sayer hopes to convey. Now that’s an idea I am proud to have uttered.
Maybe, Gene, but the women are going with him. Right now independents are swinging his way. The Ron Paul men like Tony C. are probably not going with him. but if all stays the same he can make that difference up with female voters. You are kind of in a unique category. lol
AY,
Maybe so, but I thought TD was clearly speaking of Thomas when he brought to the topic framed in the terms of reconstruction.
*************
Smom,
Then id707 should supply specificity. Not all liberals are Democrats although almost all of them (myself included) are democrats. Obama may not have issues with his partisan liberal supporters, but all the evidence I see points to him having considerable issues with his non-partisan liberal base.
AY2
Now you’re going “lawyer” on me.
Who? means? watch out…. sometimes put…..
Be specific with your challenges and your points please.
I will clarify my tale which might be construed as an accusation against a well-known descendant of house slaves—-a man I still respect, as does the American people bipartisanly. He, supposedly, as part of the system proposed by Chomsky, learned to internalize the goals and recognize as just these goals of those in power: the establishment. Otherwise, you never get far enough to MAKE A DIFFERENCE.
And this confirms that we ALL are Uncle Toms, even the Kochs have someone or group to whom they must be respectul to. So do all, regardless. Are in the realization that we have to eat, etc.
“It is sad to see Uncle Tomism, but yee gods, the blacks have greater reason than whites considering their starting points. And all share the same basic survival drive, even liberals——-just some claim to be their brothers’ keepers. Would they were more numerous.”
Repeat: “all share…” Get it?
TD’s point was, as I see it, that justice Thomas in his service as asst AG in Missouri showed his allegiance not to the law, but to anti-Reconstructionism.
And implied I feel, that he was proud of his allegiance, and displayed the Confedarte flag for that reason——-and was not ashamed to choose the side which abuses the 99 percent most.
Idealist707,
It’s important to speak with specificity. I am not a Clarence Thomas historian. Until now, I didn’t even know what state he was from.
I know what the establishment is. What are the goals, and how far are you willing to go? Human relationships are based on power, and the goals of those in power aren’t always just. Sometimes they are, sometimes they aren’t. Power corrupts and absolute power corrupts absolutely.
Make it four, Mike S.
idealist707, Do you think AY2 is new or the same one?
Swarthmore mom,
Same one.
Gene H, True enough, but you are not the “liberal base” that idealist referred to.
And quite a few of us non-partisan liberals do have a real substantive problem with Obama.
idealist, I think it is a myth that Obama has a problem with the liberal base. The people that I know that make-up the base have not wavered in their support.This blog is not representative of the liberal democratic base. Many here pride themselves on being non-partisan.
Before this goes too far astray, Thomas’ deficiencies don’t rest in the color of his skin but rather in his character and barely minimal skills for the job. He’s the only person sitting on the SCOTUS bench to ever get the simply “qualified” evaluation from the ABA since the ABA started evaluating SCOTUS nominees. His history before SCOTUS points to a minimally competent jurist with the proclivity to be a partisan bootlicker, a corporatists stooge and a elitist who thinks very highly of people with money and/or influence (especially if they have the “correct” – read “male” – genitalia). His sub-par performance as a SCOTUS jurist is exactly what they, the people who sponsored this disgrace to the bench, wanted when they picked him. He could have been plaid and they would have backed him. The color of his skin was irrelevant other than it was good press. His compliance to the fascist agenda was why he was selected and why he should have never been approved to a position that ideally requires both non-partisanship and a basic commitment to justice and equity – things Thomas has never and will never display due to his character flaws and minimally sufficient intellect for the job.
Gene H,
FYI.
I thought idealist707 was talking about somebody else (JCS).
MikeS,
A NNth vote of “well said”.
Next in line.
.
The respect is there, beneath the irony of viewing the decorous parade.
idealist707,
Who is uncle Tom? I think that basically means sycophant. More than enough of that to go around. And be careful who you’re calling uncle Tom. Sometimes you’re put in a most unfortunate situation.
How Activist is the Roberts Court?
April 2, 2012
by Jeremy Leaming
A Supreme Court opinion striking health care reform would be indefensible and widely perceived as political said former Solicitor General Walter Dellinger at a recent ACS briefing on last week’s oral arguments in HHS v. Florida.
Dellinger’s sentiment is echoed in an editorial from The New York Times, which said the oral arguments in the health care reform case should put to rest the widely held belief that “legal conservatives are dedicated to judicial restraint ….” For the Roberts Court, The Times continued, has proven to be a judicial entity ready to “replace law made by Congress with law made by justices.”
The Times’ editorial continued, “Established precedents support broad authority for Congress to regulate national commerce, and the health care market is unquestionably national in scope. Yet to Justice Kennedy the mandate requiring most Americans to obtain health insurance represents ‘a step beyond what our cases have allowed, the affirmative duty to act, to go into commerce.’ To Justice Breyer, it’s clear that ‘if there are substantial effects on interstate commerce, Congress can act.’”
President Obama fielding questions from reporters following a news conference with Canadian Prime Minister Stephen Harper and Mexican President Felipe Calderon, issued concern about a high court opinion invalidating the Affordable Care Act, Politico reported.
“I just remind conservative commentators that for years we’ve heard that the biggest problem is judicial activism or a lack of judicial restraint,” Obama said. “That a group of people would somehow overturn a duly constituted and passed law. Well, this a good example. And I’m pretty confident that this court will recognize that and not take that step.”
The president said his confidence was based on “precedent out there. That’s not just my opinion, by the way. That’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices who said this wasn’t even a close call.”
One of those judges is Judge Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit. Silberman, in Seven-Sky v. Holder, upheld the minimum coverage provision, which requires many Americans to carry a minimum amount of health care insurance starting in 2014, against a challenge that it was a wild overreach by the federal government.
“Congress, which would, in our minds, clearly have the power to impose insurance purchase conditions on persons who appeared at a hospital for medical services – as rather useless as that would be – is merely imposing the mandate in reasonable anticipation of virtually inevitable future transactions in interstate commerce,” Silberman wrote in the case.
During the ACS briefing on the oral arguments, former Solicitor General Walter Dellinger cited Silberman’s decision in saying that he was holding out hope that a majority of the justices would not kill the health care reform law.
Dellinger noted that Silberman had found that the health care insurance requirement is within the scope of regulating commerce among the states.
But several of the Supreme Court justices pressed the federal government during oral argument for a limiting principle. Several of the justices, notably Antonin Scalia, claimed that if the mandate were upheld that Congress could require us to buy all kinds of products, such as broccoli.
Dellinger said the limiting principle is not hard to define here. “The power to regulate commerce among the states,” he said, “extends to goods and services that will be provided to the individual even if they have no arrangements to pay for them, where the costs will be shifted to others, in a way that undermines an undoubtedly regulatory constitutional scheme.”
That principle Dellinger added does not cover the hypotheticals bandied about right-wing activists and several of the conservative Supreme Court justices.
As noted here last week the high court’s conservative justices, at times revealed a disconcerting understanding of how the health care insurance market works. Dellinger also said those same justices, at times, revealed callousness in their questioning.
“I was struck by how callous some of the questioning was,” Dellinger said. “It is really quite striking when the Solicitor General [Donald B. Verrilli, Jr.] notes that a critical part of the background of which Congress regulated is the obligation we have to provide treatment to people who are sick or injured.
“The snappy reply from Justice Scalia was, ‘well don’t obligate yourself.’”
Scalia, Dellinger said was suggesting that the federal government has created this problem. “That it’s a problem that we don’t let people suffer and die on the steps of the hospital,” he said. “The notion that is a problem of the government’s creation is fundamentally callous.”
Indeed Dellinger noted that many states, including the ones challenging the health care reform law have similarly explicit laws. American Constitution Society blog
MikeS
As usual little left to contest or add, after you summarize or expound.
But there’s the obvious question:
How can Obama been so naive to become President with the naive idea that the Republicsans have “good intentions” and would be willing to compromise, etc.?
Should he have not entered Washington, realized that his hope to have a signature social law passed would not go (due to the economic crisis); and instead attacked the forces behind the market and economic collapse—–and thus made his name and re-election on those issues?
The people sent him there for change, not for reaching compromises.
He has reached neither. And reduced his liberal base to those who say better a Democratic hell than a Republican plague.
“How can Obama been so naive to become President with the naive idea that the Republicsans have “good intentions” and would be willing to compromise, etc.?”
ID707,
Easy answer: Take the arc of Obama’s life and it is easy to see a man who would believe the system basically works and that most people in politics are interested in what’s better for the country, than for themselves. I know many people with high intelligence, who have been successful in business, yet remain naive (purposely or not) about how badly the system works. That I myself am justifiably cynical about people in power, doesn’t mean I can’t understand why others, based on their own life, view it all through the proverbial rose colored glasses. I’m hoping that of late Obama’s intelligence and Michelle’s guidance, has given him a clearer picture.
AY2,
You disagree with Tallkin’Dog:
“…You seem to be taking a simplistic approach. I don’t think anybody has a problem with the 13th, 14th, or 15th Amendments. ”
Not being acquainted with any amendments, my mind sees unrebutted TD’s point that we have an uncle Tom simply put; or more accurately put, a “house slave” seeing to his advantages over those of the “field slave. He will get lighter and lighter, rise higher and higher, and eventually become JCS chairman or used by his masters on the world stage to justify a war, as one example, or writer of the book “Outliers” which tells the story of this phenomenom.
It is sad to see Uncle Tomism, but yee gods, the blacks have greater reason than whites considering their starting points. And all share the same basic survival drive, even liberals——-just some claim to be their brothers’ keepers. Would they were more numerous.
Blouise
1, April 5, 2012 at 9:38 am
Harrumph
———————-
me too…..and what Mike S. said….