The Columnist and The Committee: Dana Milbank Fires Back At The Judiciary Committee With Second Controversial Column

260px-capitol_building_full_viewYesterday’s hearing on legislative and executive powers before the Judiciary Committee has generally a great deal of media and blog discussion. However, one of the more curious takes was written by Dana Milbank of the Washington Post. Entitled “Activism on the Court? GOP Wants To Be The Judge,” the article portrays the hearing as a hypocritical and “newfound love of activist judges.” Having testified at the hearing, I was mystified by the spin on the hearing. Ironically, Milbank was criticized in the hearing by a member for allegedly distorting a prior hearing’s content and focus — an issue that we discussed in December. In a tense moment, Milbank (who was sitting a few feet from the members at the press table) was criticized for his prior column where he portrayed a Judiciary hearing as largely about impeaching President Obama. He was challenged as misrepresenting that hearing which contained only passing reference to impeachment as one of the various options left to Congress by the framers in serious conflicts with presidents. This now appears a continuing battle between the columnist and the Committee that will only grow more intense with this latest column. Here is the video link to the testimony so you can reach your own conclusions.

I actually enjoy Milbank’s writings. He is often clever and funny in his covering of Washington stories. He is a very intelligent reporter and has been around this city for a good long time. In fairness to Milbank, it is also important to note that he is an opinion writer and readers look to him to give his unique take on stories. He is entitled to focus on the aspect of the hearing that he finds most telling and interesting. A smaller but accurate account appeared on the same page by David A. Fahrenthold (which is different from the last controversy). Notably, however the print version of that piece is entitled “Lawmakers Get Pep Talk In Standing Up To Obama” which is hardly a fair description of a hearing reviewing four pieces of legislation and exploring the legal standards that would apply to such cases. (The web version here is more fairly entitled). Milbank’s article is available here.

The article in the Post however seems oddly unconnected to the hearing. The thrust of Milbank’s article is that Republicans now want activism in seeking standing to sue the President. Notably, Milbank does not explore the opposing conflict in the position of some Democrats in resisting judicial review and voicing support for a president with unilateral and seemingly unchecked powers. Milbank also suggests that any such lawsuit would be “frivolous.” While he does concede lower in the article that “[t]here are legitimate questions to be asked about the long-term shift of power from the legislature to the executive,” he portrays the hearing as all about wanting to get activist decisions from the courts.

Ironically, as discussed in my testimony below, the hearing has little to do with the merits of any of the controversies over the circumvention of immigration, health care, and other laws. We were discussing the ability of members of Congress to simply gain access to the courts in conflicts over the separation of powers. The Supreme Court has made an unholy mess of standing jurisprudence, a view shared by many if not most academics in the field. It is true that this issue pits Republican members against ultra-conservative jurists like Scalia (and puts Democrats in positions of supporting Scalia’s narrow views on standing in favor of presidents). However, that is what makes this a unique opportunity. If the Democrats were to fight for their clear institutional authority, we could see a unified Congress in fighting for separation of powers principles. This is about process not policies. Courts have increasingly removed themselves from separation of powers disputes and the result has been raw and dysfunctional conflicts between the branches.

Republican members in the hearing were highly critical not just of President Obama but President Bush. That is a moment that should be acknowledged and not misconstrued in coverage. Moreover, the failure to consider the silence of other members in the face of unprecedented circumvention of the legislative branch would seem worthy of equal discussion.

schroedercelizabeth_pricefoleyMilbank also attacks one of the three expert witnesses in the hearing: Professor Elizabeth Price Foley (right) who is portrayed as hypocritical given an earlier article that she wrote in the Daily Caller entitled “Why Not Even Congress Can Sue The Administration Over Unconstitutional Executive Actions.” Foley explained at length when confronted in the hearing that she did not choose the title — any more than Milbank or Fahrenthold chose the titles this morning. She also explained that she was referred to the weight of the cases as they stand now — not her personal view. From Warren Burger to William Rehnquist, the Court has made it more difficult for people to get access to the courts to challenge unconstitutional actions. However, there remains considerable confusion over the lines of standing jurisprudential, particularly for lawmakers. I have long been an advocate for legislative standing and have represented members in challenging executive actions. I though Foley gave an accurate and impressive account of the standing cases from their standpoint. It was not some “pep talk” or call for activism, but a frank and fair discussion of the issues remaining in these cases. I have never previously met Foley but I was very impressed with her knowledge of the cases and issues. Her testimony is available at the link below and was detailed and thoughtful. Also available is the opposing testimony of Professor Christopher Schroeder of Duke University Law School (left).

I also was surprised to read that the hearing “filled three hours with accusations and wild hypotheticals: ‘Tyranny. ‘Dangerous and scary moment.’ ‘Imperial presidency.’ . . . ” These words are taken out of context. Tyranny is the danger described by Framers in the concentration of power and is used widely in academic work on the aggrandizement of power. “Imperial presidency” is a term used to describe the Nixonian concept of a dominant presidency. There are clear dangers presented by the concentration of power in our system and we have to see beyond how we feel about this president or his critics. There is a dangerous and destabilizing shift without our system that did not begin with this President but has certainly accelerated under him.

Once again, I value the work of Milbank who has long been a strong and insightful voice in the media. However, I do not view this piece — even as an opinion piece — to fairly represent the substance or the statements from the hearing. Because I honestly believe that we are in the midst of a dangerous shift of power within the tripartite system, I was disappointed. Milbank is someone who could add an articulate voice in explaining the dangers posed by a dominant president in a system of shared powers. Our system is changing as we are too caught up in this poisonous political debate to stop and take note of the implications of those changes. This will not be our last president, but these powers will remain. Those issues are explored below in the testimony that I gave at the hearing. The other witnesses have testimony available on this site.

Turley Enforcement Testimony

61 thoughts on “The Columnist and The Committee: Dana Milbank Fires Back At The Judiciary Committee With Second Controversial Column”

  1. Hi, I do believe this is an excellent blog.
    I stumbledupon it 😉 I may revisit once again since I saved as a favorite it.
    Money and freedom is the greatest way to change, may you be rich and continue to guide others.

  2. Never trust a male who parts his hair like Hannity does. Never trust anyone under 30. Don’t change Dicks in the middle of a screw, vote for Cheney in 2002. Never trust a male with first name Dana. In Holland it refers to a guy who just got off the boat from Denmark.

  3. Jeffrey, We disagree, no big deal. The civility of our disagreement is what I will take from this.

    1. People are loathe to be told what to think and even more resent being told that they are wrong! People must come to their opinions by their own devices.

  4. Or you can be like MSNBC and shoot the messenger. In their case Pat Buchanan. I don’t agree with anyone all of the time, but it was nice to see the big contrast. Even everyone’s favorite hyperactive host Chris Matthews had ill feelings about how that all went down as well. I would like to see the law returned that required equal time to a viewpoint. But then again, I am sure that would kill the mood for most people if there were always a balanced discussion. OK… and I know what you’re thinking–I don’t know who the people may be to fill those roles… but maybe they’re out there? Pat Buchanan was a very knowledgeable person in that role. For a good new conservative voice, how about… well… you know… ahh… OK, I give up…

  5. Jeffrey, The discussion you and I are having is not pointless. I watch some MSNBC. Your first comment is superb and honest, pointing out MSNBC has ignored this CRITICAL topic. I can only speak for myself, but Mr. Turley owes me NO explanation for why he appears in any venue. Hell, he can go on Jerry Springer, that’s HIS business. Anyone can accept or reject his choices. Mr. Turley has appeared on MSNBC many times. That network is closer to his politics than Fox from everything I’ve ever seen or read form him. This has become an Imperial Presidency and the fact that more media outlets aren’t reporting on this is disgraceful and frightening, not necessarily in that order. Again, welcome aboard and hope you stick around.

    1. Professor Turley does not owe me an explanation because I do not know know the man. I stated that I welcome an explanation because I have to believe that Turley draws the line somewhere! Why he supposes that Hannity is not beyond that line is perplexing. After all, Hannity gives a platform for the most vile voices on the Conservative Right, e.g., Coulter, Nugent, D’Souza, etc. Predictably, other FOX show hosts are now exploiting Turley’s appearance on Hannity to bolster their villification of Obama by claiming that even a prominent liberal agrees with them. An astute observer of FOX would have predicted that FOX would use Turley’s appearance to attack the President personally rather than raising the larger issue of the recent trend in the usurpation of power by the Executive Branch. Hopefully, Turley was blissfully unaware of Hannity’s intellectual dishonesty. It’s no small matter in my opinion,

  6. Blah….blah…blah! Once again, you provide no proof to show that the articles that I posted weren’t true/factual. You provide no proof to back up your accusation that I’m an ideologue. You think a lot of things that aren’t correct. I’m not angry. I see you as quite pathetic. You claim to like/respect the civilty rule–still, you label and insult others who comment on this forum who disagree with you.

  7. You’re right, I’m wrong, MSNBC, Daily Kos, Media Matters, etc. are very unbiased forums offering all types of opinions w/ respect and dignity. It is only Fox, Weekly Standard, Breitbart, etc. that engage in intellectual dishonesty. The very simple yet profound point, that seems to elude ideologues is that you preach to the choir and listen to your own ministers. Both sides do it. If you could only just have a few moments of clarity it would humble you. BOTH SIDES. My intent is not to anger, I’m merely stating what I THINK. If you get angry from what I have said in my last couple comments than I suggest a mirror may be helpful. Finally, when you disagree w/ someone the comment will, by definition, be negative. I’m generally a very positive person, evidenced by many comments made here. I do like the civility we now have and hope you all feel the same.

  8. For someone who never post links, some sure like to disparage other’s who go to the trouble. Spouting opinions are easy.

Comments are closed.