ABA President Criticizes Obama For Judicial Activism Comments

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.”

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

43 thoughts on “ABA President Criticizes Obama For Judicial Activism Comments”

  1. The federal bench is more to the right than it has been at any time since the 1930’s, and is quite activist. Someone has to criticize them.

    But I would rather that it was balanced so there would be no criticism needed.

  2. “but we should expect our leaders to refrain from partisan statements aimed at judges fulfilling their constitutional role and responsibilities.” is a big pile of it, as has been said above.

    Permanent campaign mode, permanent war mode, permanent surveillance mode. What comes next? Sorry, forgot permanent corporate rule. The root of it all.

  3. For the benefit of the public: The ABA is not an official association representing all lawyers in America. It is a private organization with a sultry past back in the days not so long ago of segregation.

    No self respecting lawyer who believes in the constitution and rights of individuals would belong to this organization of big law firm snots who give out awards to each other for being the best and the brightest.

    The ABA guy speaks of the courtroom as being sacred or somesuch nuance but our President was not speaking in a courtroom. Franklin Delano Roosevelt criticised the Supreme Court for striking down needed legislation and history is kind to the New York snooty upper class white boy, even though he married his second cousin once removed first name Eleanor, maiden name Roosevelt. But this is getting off subject.

    The ABA guys last sentence above is particularly obnoxious. The Supreme Court is stepping out of their role in this instance and the judges are interposing their views on political issues over those of the People through the Congress. It is time to end ScaliaCare as we know it (or more importantly as They know it). Ask your Congress person to introduce a Bill to repeal ScaliaCare. Write to the ABA guy and ask him which courtroom he was speaking from when he criticized our President.

  4. I think what I find more troubling about Obama’s comments than that they sound like something George W. Bush would have said is the factual incorrectness of them. Obama described such conduct by the judiciary as “unprecedented,” which is simply not the case.

    There was a time when such right-wing judicial activism was common, and it was called the Lochner Era. That era subsided in favor of a model of judicial restraint championed by, among others, Felix Frankfurter, who went from being a “liberal” to a “conservative” in a couple short decades without changing his general judicial philosophy.

  5. Obama’s remarks were not “wrong.” The Supreme Court is highly politicized as they now fashion their opinions according to their political persuasions. The Supremes lost the respect of the American people with Bush v. Gore and Citizens United; they are just another political “branch” of of polarized system of government. The ABA President’s “troubling” comment is just more politics. America is in “permanent campaign” status with all three highly politicized branches of government in permanent fourth gear…. Nothing new, here.

  6. There is a tinge of insidious racism to many criticisms of Obama, as is reflective of the tinge of racism present in our society. Careful observation (or even any observation — for instance the dismissive way the pres is treated by numerous Congresscritters ) and some sensitivity to numerous indicators reveal this, at least by my lights. This assertion is easily criticized as being hypersensitive, and most notably dismissed by referring to the fact of a black president in itself.

    Sadly, also by my lights, Obama’s race sensitivity has worked mainly to the detriment of progressive ideas, and has been a factor in reinforcing his own, perhaps inherent, right wing tendencies.

  7. James,

    The charge of racism while criticizing Obama has been an effective strategy to silence that criticism. Of course, racism is real and very destructive, expressing itself against highly powerful, wealthy and extremely well connected people like Obama who is himself a racist, as well as ordinary people of color. So I think your question is a good one. Is this about the president’s race or about what he has done or said. It could be both.

    One thing, in addition to your question, that must be acknowledged is that what Obama did was wrong. This is true whether the criticism is based on racism or whether the speaker is a schmuck.

  8. Did Robinson have any comment about Justice Sebell and his “joke” about Pres. mother, SC Justice shaking his head “No” during State of the Union, Senator calling Pres. stupid, Gov Brewer shaking finger in Pres face. It is a stretch to criticize Pres remarks, particularly since he merely repeated verbatim what GW Bush said on numerous occasions. Why was it appropriate then but not now? Could it be that this whole thing about disrespect and criticism is more about Pres race rather than what he has done or said?

  9. Buttersquash, Obama is right wing so this schmuck is criticizing a right winger. I agree with you that he is a schmuck. I just don’t have any use for the hypocrisy of Mr. Robinson III! If he disbars a member for advocating and abetting torture, I’ll start listening!

  10. His remarks regarding the Judiciary are more than troubling. They are words that are found throughout history as the hallmark of Totalitarian governments. When the liberal media opens up you know the gig is up.

  11. Anybody here remember “Justice Sunday”? That was one party attempting to generate a very large political wave against certain court rulings and certain judges. Where was the ABA prez on that one?

    Politicians whining about the courts goes back at least to Jackson (“How large an army does the Chief Justice command?”) and certainly has been popular at various times throughout history. Get over it.

    And BDass, thanks for again demonstrating that nothing you say has any value to this site and that your blind ignorance infects everything you say.

  12. Where has this schmuck been while right wingers have been screaming about judicial activism any time a decision doesn’t go their way? Probably working on Ethics Opinions outsourcing American legal jobs overseas.

    I would be more inclined to view the judiciary as a nonpartisan source of equal justice before Bush v. Gore and “Citizens” United, the latter essentially being a pro-corruption decision intended to benefit Republican constituencies.

    The actions of the petulant judge on the Fifth Circuit was nothing more than an infantile temper tantrum and is beneath the dignity he is expected to show for his office.

  13. I wish the head of the bar had blasted Sen. Cornyn for his remarks about judicial activists causing violence against judges.

  14. Where were the ABA’s president’s criticism when George W. Bush criticized activist judges, repeatedly? Mr. Robinson asks all to keep politics out of the court room, but how do you do that when at least 4 of the 5 are there to serve their political bosses?

  15. “but we should expect our leaders to refrain from partisan statements aimed at judges fulfilling their constitutional role and responsibilities.”

    You mean like this also?

  16. The ABA president is correct but I do not feel he is very effective as a critic. The ABA has not taken its own code of ethics seriously by failing to disbar members who advocate torture. Until they take the stand required by the rules of their own organization, his criticism of Obama rings hollow.

  17. “President Barack Obama’s remarks on Monday speculating about the Supreme Court’s potential decision in the health care legislation appeal are troubling.”

    It’s just not his statement it’s his whole presidencey. Anybody that would pal around with a domestic terrorist such as Bill Ayers has issues.

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