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