ABA President Wm. T. (Bill) Robinson III has issued a statement criticizing President Obama’s statement that voting against the health care law would be “judicial activism” In a letter to the Wall Street Journal, Robinson called the remarks “troubling.”

Robinson wrote:

“President Barack Obama’s remarks on Monday speculating about the Supreme Court’s potential decision in the health care legislation appeal are troubling. Particularly worrisome was his suggestion that the court’s decision in this case could serve as a ‘good example’ of what some commentators have cited as ‘judicial activism or a lack of judicial restraint’ by an ‘unelected group of people.’ We’re gratified that the president recast his remarks Tuesday. He clarified appropriately that ‘the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it.’ It is incumbent on all of our elected officials—including those aspiring to hold office—to continually demonstrate that the courtroom is not a political arena. It is a measure of a free society that individuals are able to openly disagree with court decisions, but we should expect our leaders to refrain from partisan statements aimed at judges fulfilling their constitutional role and responsibilities.”
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I previously made the same objections, though I also felt that the Fifth Circuit overstepped its bounds by demanding a letter from the Justice Department explaining those comments (despite the comments of the lead government lawyer that the government did not question the ability of the court to overturn the law). Yesterday, I went on MSNBC to discuss the controversy with Martin Bashir. I still believe that the President crossed the line on the judicial activism suggestion (though that was not shown on program). [By the way, I read the transcript and saw that I said I “watched” the three days of argument. In fact, I listened to the argument rather than watch the arguments in the courtroom itself]. I found the later statement of the President to be entirely appropriate — citing what the President viewed as the strength of the precedent.

I have met Robinson at the ceremony for the top 100 Irish lawyers at the Irish Ambassador’s home and found him to be a thoughtful man. Robinson is under fire for his criticism of the President but his statement is measured and in my view correct. He is showing the detachment that was lacking from the Attorney General when he called the President’s statement “appropriate.” As the chief legal officer, I believe Holder should have taken the approach of Robinson and acknowledged that people (and jurists) of good-faith can disagree on the issue of federalism in the health care litigation.

Here is the full statement by Robinson:

April 7, 2012
Statement Issued by ABA President, Wm. T. (Bill) Robinson III, on President Obama’s Remarks on U.S. Supreme Court and National Health Care

STATEMENT OF WM. T. (BILL) ROBINSON III, PRESIDENT, AMERICAN BAR ASSOCIATION
Re: President Obama’s remarks on upcoming U.S. Supreme Court ruling on national health care

President Barack Obama’s remarks on Monday speculating about the Supreme Court’s potential decision in the health care legislation appeal are troubling. Particularly worrisome was his suggestion that the court’s decision in this case could serve as a “good example” of what some commentators have cited as “judicial activism or a lack of judicial restraint” by an “unelected group of people.”

We’re gratified that the president recast his remarks Tuesday. He clarified appropriately that “the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it.”

Federal judges are, by design, not elected officials. Article II of our Constitution reserves for the president the authority to appoint Supreme Court justices and all other officers of the United States with the advice and consent of the Senate. In fact, President Obama himself has offered more than 123 nominations for Article III judgeships, including two lifetime appointments to our nation’s highest court.

The legitimacy of judicial review was settled more than 200 years ago in the landmark case Marbury v. Madison, which established such review as a key safeguard of the separation of powers doctrine. The Framers of our Constitution clearly understood that an independent judiciary is critical to the maintenance of our democracy and freedom.

It is incumbent on all of our elected officials—including those aspiring to hold office—to continually demonstrate that the courtroom is not a political arena. It is a measure of a free society that individuals are able to openly disagree with court decisions, but we should expect our leaders to refrain from partisan statements aimed at judges fulfilling their constitutional role and responsibilities.

Source: ABA Journal