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. Since in Attorney General Holder’s considered legal opinion, “Due” rhymes with “Do” (see above), I submit that Judge Smith and Professor Turley mistakenly think that they heard an adjective instead of a transitive verb when Attorney General Holder used the word-like-noise “appropriate,” as in: “to take or make use of without authority or right.”

    Lexicon, grammar, and semantics have collectively become unhinged in the United States of America where, by design and in three-part harmony, the Oligarchical Collective insidiously chant Syme’s Dictum: “You don’t grasp the beauty of the destruction of words!”

  2. When Attorney General Eric Holder publicly proclaimed — with a straight face, no less — that “due process” does not mean “judicial process,” he effectively stated that “there is no law” where the Executive Branch does not want one to apply. Mr Holder’s legal “reasoning” amounts to baldly asserting that: “‘Do’ rhymes with ‘Due,’ can’t you see?”

    Faux conservative comedian, Stephen Colbert had a field day lampooning that shameless twaddle.

    As long as Federal Court judges see fit to take umbrage at public statements by officials of the Executive Branch, I would have expected them to summarily declare Executive Branch advocates persona non grata before any court until such time as President Obama publicly repudiates his Attorney General’s ludicrous comments and publicly certifies that “due process” means the Constitutionally guaranteed right of every citizen to a speedy trial before a jury of his or her peers, represented by competent counsel, with right of discovery of any evidence possibly supportive of his interests, with full presumption of innocence assumed and with the burden of proving guilt-beyond-a-reasonable-doubt solely the responsibility of those making the accusation, et cetera, et cetera.

    Since Judge Smith appeared emotionally comprised (as the logical Vulcans like to say) — and therefore compelled to issue a petulant retort to the Attorney General — he might better have told the Government’s advocate in court: “The Attorney General has declared that ‘Due Process’ does not mean ‘Judicial Process,’ but since Due Process is what we in the judiciary are charged by the Constitution with providing, what business have you here who think that it transpires in some other — and secret — place of your own choosing?”

    Of course, the Oligarchical Collective (as Orwell termed them) consider themselves above and beyond the law in any event; and thus their petty, intra-corporate spats amount to nothing of significance for themselves but only more draconian totalitarianism for the pepper-sprayed, sound-cannoned, rubber-bulleted, truncheon-battered proles who might wish to peaceably assemble and petition their government for a redress of grievances. President Obama and Attorney General Holder have a flashlight and phallic nightstick ready to lend Justices Scalia, Thomas, Roberts, Alito, and Kennedy as they empower the pigs to pruriently probe the nether regions of any jaywalking protester who steps off the curb without “permission.”

  3. Mike (April 5, 10:31 AM),

    He [Obama] has been criticized for standing passively by while the needs of citizenship have bee trampled due to court rulings such as Citizens United and the most recent one on strip searches for arrests.

    I agree with the others that your comment is well thought out and written, but you make a mistake in saying that Obama stood passively by on the strip search decision. He and his DOJ formally asked for the strip search as a tool needed by law enforcement.

    It goes without saying that the media has by in large been quiet on that fact and that Obama apologists are either unaware of it or are studiously ignoring the fact as they are with his positions on Presidential authority to terminate human lives without judicial review of any kind, or a host of other civil rights abuses. More to the point, ignoring the implications regarding what Obama’s intentions actually are or what he really stands for. The notion that he simply wants to “get along with everyone” is pretty thin gruel for those who observe his “unforced” actions.

  4. This dispute would be much more interesting were Newt Gingrich the President. Based upon his recent comments, he would simply have Judge Smith arrested and brought before him to explain the propriety of the order.

  5. Incidentally, my parody on Clinton’s Oval Office was just that. It implies to me that a President who will execute Americans without judicial process can and will do whatever he likes. That his proclivities (good word, when used properly) are just hyperbole just to show the extremes our scholar has gone from the Constitution.

    If you’re prude and proper, then stop reading. That is your problem, not mine.

  6. Wisely skeptical,

    Simple, don’t read my stuff. It was not submitted for your approval.

    As for Koch Bros, you must be a dyslectic. No support from me.

  7. wisely skeptical,

    Why does the United States have more people locked up than any other nation on the planet? Does that constitute a world-renowned, highly respected justice system? Does it sound like good sense?

    With regard to corporate bully elites, they couldn’t care less about the international opinion court.

  8. Elaine,
    You are being too kind! 🙂 If he has a hard time following the arguments, maybe he should resign right now.

  9. eniobob
    1, April 5, 2012 at 8:19 pm

    “BTW,I see Justice Thomas named mentioned and I was curious from the jump as to what he would do during the days of the Obamacare debate.

    ” In keeping with his usual court demeanor, Justice Clarence Thomas asked no questions ”

    REALLY ????????

    Clarence Thomas Chides Colleagues For Asking Too Many Questions

    “LEXINGTON, Ky. — Maybe it’s Southern courtesy or his introverted nature that keeps him from interrupting attorneys during oral arguments, Supreme Court Justice Clarence Thomas said Thursday evening.

    Whatever the reason, the Georgia native had a blunt assessment about the rapid-fire questioning from his colleagues during recent hearings on the nation’s health care law. The queries weren’t helpful to him in deciding the case, he said.

    And Thomas suggested his loquacious colleagues should do more listening and less talking.

    “I don’t see where that advances anything,” he said of the questions. “Maybe it’s the Southerner in me. Maybe it’s the introvert in me, I don’t know. I think that when somebody’s talking, somebody ought to listen.”

    http://www.huffingtonpost.com/2012/04/06/clarence-thomas-supreme-court-health-care_n_1408264.html

  10. I dont understand why Clarence Thomas never defends himself or why in his role as Supreme Court Justice he is remarkably noticeable only for his not saying anything at all. To idealist 707 : talk about having a childish proclivity for infantile nyah nyah games ! Your off – color inanities (are you a person or are you a minuscule corporate bully network ? ) should get some kind of silly group prize.
    No one in a decent frame of mind would back the Koch Brothers , by the way.
    The extreme positions of one side makes their civility seem very reaonable when in fact they only support international multiple corporations, the usually very just Mike Spindell writes. If people in a world – renowned and highly respected justice system don’t know or understand what makes the USA constitution popular with human rights groups or civil rights groups then a huge percentage of bloggers can show them the good sense that Americans can bring to the table. To resolve any horribly unjust sysyem, everyone has to work with the diplomatic nuances we’ve got . (With apologies to the 19th century flawed teachings of church and state and psychological sciences . ) Justice may be occasionally blind, but corporation bullies elites will eventually have their day in international oipinion court .

  11. Having long passed the overflow mark here, so one more—not by me.
    Its pertinence as to being a national indicator is beyond my interpretation, but the presence on the ed page of a reputable newspaper is interesting in itself.

    “Virginia Rometty plays golf, but it’s not yet come to light whether she’s a low-handicapper or a duffer. What is known is that she is the new chief executive officer of IBM, one of the Masters television sponsors. In the past, those who have held the position have been invited to join Augusta National, home of the Masters and the most exclusive golf club in the world. The invitation is not pending to Rometty, however, which has prompted some to question whether the club, which didn’t admit its first black member until 1990 (and that was under some pressure), is determined to stick with its men-only policy for membership.
    Updated Apr. 6, 2012 3:58 AM|Full Story”

    http://www.newsobserver.com/2012/04/06/1983242/the-old-boys.html

    IBM has its next largest division at the RTP, second only to India.

  12. You know we had a winner once portraying the world of a NJ mobster,
    Popular, but the closeups of violence reminded me too well of Nikita (the film). So prefered to hang at West Wing. Here is an excerpt I remember well and enjoyed:

    “Good morning, Mr.President. My name is Jennifer. I’m your 10AM fluffer.
    What is your morning preference, Mr President?”

    “Just call me O.” , “Yes, sir” (muffled as she crawls under the desk)
    O. continues: “Have you any new tricks from your academy, if so, surprise me with that.” (redacted sounds emerge from under the desk)

    Intercom from secretary controlling entry: “Mr. President”
    O: “I’m busy.” Sec. “I’m well aware of your schedule, sir. But Hillary insists it’s urgent.” O: “Tell her she’ll get hers at lunch, AS scheduled, no sooner.” Sec. “Yes, Mr President.”

    Sec: “Mr President?” O: “What now?!” Sec: “One of the Kochs brother is here to see you.” O: “Tell him my ass is busy this afternoon, and he’ll get his chance tomorrow as promised. (under breath Hurry hurray always hurray.) Yipes, careful with the teeth.”

    Sec: “Yes sir.” Jennifer: (Gulp)

    I am thinking to submit it as a recommendation to their Hall of Fame site.
    What are the odds, do you think it being accepted?

  13. more HG,
    this would seem to me to be the most pertinent critique by Atlantic (in view of our interest area here).
    “…..not only startlingly somber twists on the standard blockbuster, but offer resonant commentary about society, particularly government control and corruption. They are crowd-pleasers with something to say.

    Others wrote the contrary opinion: Roger Ebert “criticized the film for being too long and noted that the film misses opportunities for social criticism”.

    Will this make the public aware of the corruption in our nation? Will it have a positive effect generally considered? Wise minds here. And plenty of voices.
    I nothing else they also have sewn up at least 5 pre-quels. ie How in the hell did we get here, and how did some of us survive?
    I find the idea of remote provinces being subservient hard to enthuse over, but then we had Rome and its colonies once.

  14. Speaking of films,
    Hollywood of course, why not do one on the ca 70 CE Judean era.
    Lots of action: Final defeat of Judah by the Romans, diaspora (previously more jews in Alexandria than in Judah, moving a business to Alexandria is not easy, you know.), Christian struggles to proselytize both internally and externally (whatever happened to Thomas, they say he is in India as planned, have you heard from him (giving reason for visiting that exotic land, sexy dancing girls, well-stocked harems, although they were not yet muslims (the custom is very old), sumptious banquets (helping the sales of goodies in the lobby)), and the usual Roman intrigues in stilted phrases (how now brown Caesar?).
    Or are historical films out just now?

    HG is of course just perfect for four sequels. What happens when we wake up in four years?

  15. OS said:
    “….When in grade school I sometimes had to sleep in the same room with at least one body. When I was five, I wandered into the morgue to see a hobo who had gotten run over by a freight train. That was a very interesting anatomy lesson and did not put me off at all. Once helped get the remains of a motorcyclist cleaned up after he hit a brand new three strand barbed wire fence at about 100 MPH. Talk about slicing and dicing. Ever pick intestines off the barbs of a fence wire? I was nine at the time. ”

    It was a college student who hastened too slowly across the tracks when I was 5. The venous blood did its work after his death, absorbing oxygen and painting the area bright red. The splat attracted quite a crowd, that day and time’s version of a reality show. Pre-TV, you know.

    And sleeping with corpse must have been crowded when the ghosts wanted tio visit you. Did the corpses talk also. Their stomachs are said to rumble
    .
    As for the motorcyclist, don’t they have vultures/buzzards there? How did you chase them away. Or did they all recognize your meat wagon and rise as one, leaving their leavings for you to pick over?

    Ho Ho Ho!

  16. MikeS,

    Have you read the book? Did you think it a good source for info on Panem’s problems? Snark.
    You still haven’t replied to my dissing any “entertainment product” as a source of facts. Facts are hardly available on news sources, why should Millenium be driven by other than his personal well-known dragons and a need for money?
    And why is Hunger Games a Great and Important Movie? Awaken the populace? Hardly. Start a movement? Hardly. Be a milestone? Hardly.

    Can’t someone do a better version of John Adams instead? With on-line courses, forums, chat groups on the FF years and the products thereof, in relation to this faxcistic crappola we have. Crappola defined as a product of lying intending to confuse or defraud. Corrections?

    But you are a man I vernerate. do enlighten please this wrinkly neophyte.

    Next thing you know it will become a program, with real blood fights, and ultimate death using methods allowing resuscitation with 90 per cent success. The little ten percent fatality is to satisfy the ultimate realisty fans, and the Nascar and Indianapolis contingents.

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