How dare they. Appeals court questions Obama's comments.

[Gonad the Barbarian]

DoJ letter released:
http://thinkprogress.org/wp-content/uploads/2012/04/Fifth-Circuit-letter.pdf
Limbaugh thanks Judge Smith for being part of "the team:"
http://volokh.com/2012/04/04/rush-l...a-one-termer-this-november-at-the-ballot-box/

 

[fskimospy]

DoJ letter released:
http://thinkprogress.org/wp-content/uploads/2012/04/Fifth-Circuit-letter.pdf
Limbaugh thanks Judge Smith for being part of "the team:"
http://volokh.com/2012/04/04/rush-l...a-one-termer-this-november-at-the-ballot-box/

As Kerr explains, this is exactly why the 5th circuit's actions were so stupid. Now you've got Rush Limbaugh cheering that you've joined the Republican team.

The judiciary has been and always will be in a uniquely precarious position in American government. The legislature has the money power. No matter how stupidly they might behave, they will always have that one, huge power. The president controls basically the entire federal bureaucracy along with huge numbers of troops, security forces, etc. No need to explain why that's power.

What does the judiciary have? Not much. They need the money from Congress to fund their jobs and the power of the executive to enforce them. With so little explicitly granted Constitutional power, they rely really heavily on their legitimacy as impartial actors. If they ever lose that, they might find that the power they have carved out for themselves goes with it, and that's a really dangerous thing for both them and us.

Of course this episode does not in and of itself threaten that, I believe judges should be EXTREMELY careful before taking actions that undermine the perception of impartiality.

 

[theeedude]

That letter was probably the best way to deal with it. From my reading it largely avoids any direct 'fuck you' statements while implicitly stating how groundless the judge's order was. At least that's why I got from it.

Only 2 pages, is the attention whore judge going to throw a fit?

 

[fskimospy]

Only 2 pages, is the attention whore judge going to throw a fit?

My guess is that they very quietly let it drop.

 

[monovillage]

Senate minority leader, probably soon to be Senate majority leader McConnell says

“The President crossed a dangerous line this week. And anyone who cares about liberty needs to call him out on it. The independence of the Court must be defended,” McConnell (R-Ky.) said, according to the prepared text of his speech released by his office. "So respectfully, I would suggest the President back off. Let the Court do its work.”

http://www.politico.com/blogs/on-congress/2012/04/mcconnell-to-obama-back-off-scotus-119717.html

 

[werepossum]

Holder did a pretty good letter. Screw a three page letter, all you really need is acknowledgement by Holder and therefore the President that SCOTUS has the authority.

Perhaps I'm an odd bird, but I saw Obama's original comments as not so much an attempt to pressure SCOTUS - at which they would abysmally fail - as an attempt to pre-define an expected decision as judicial activism, an attempt to redefine a SCOTUS defeat in favorable terms as a campaign issue. Accordingly, I didn't see the remarks as anything out of the ordinary, just politics as usual - arguably a stupid thing to say, but not an attack on the judiciary's authority. For that matter, I still don't predict that SCOTUS overthrows the mandate, only the asinine idea that it can be a tax when needed and not a tax when needed.

Interestingly, Holder and Obama want SCOTUS to throw out DOMA, which actually did pass by a large and bipartisan margin rather than by a baseline party vote. (This is of course also proof that large and bipartisan margins are not proof against stupidity and perhaps soon, that they are not proof against unconstitutionality.) Were Obama to intend his words as pressure on SCOTUS he'd also be undermining his efforts on DOMA.

 

[fskimospy]

Senate minority leader, probably soon to be Senate majority leader McConnell says


http://www.politico.com/blogs/on-congress/2012/04/mcconnell-to-obama-back-off-scotus-119717.html

Gee, the opposition senate leader criticized the president. I never would have seen that coming.

 

[fskimospy]

Holder did a pretty good letter. Screw a three page letter, all you really need is acknowledgement by Holder and therefore the President that SCOTUS has the authority.

Perhaps I'm an odd bird, but I saw Obama's original comments as not so much an attempt to pressure SCOTUS - at which they would abysmally fail - as an attempt to pre-define an expected decision as judicial activism, an attempt to redefine a SCOTUS defeat in favorable terms as a campaign issue. Accordingly, I didn't see the remarks as anything out of the ordinary, just politics as usual - arguably a stupid thing to say, but not an attack on the judiciary's authority. For that matter, I still don't predict that SCOTUS overthrows the mandate, only the asinine idea that it can be a tax when needed and not a tax when needed.

Interestingly, Holder and Obama want SCOTUS to throw out DOMA, which actually did pass by a large and bipartisan margin rather than by a baseline party vote. (This is of course also proof that large and bipartisan margins are not proof against stupidity and perhaps soon, that they are not proof against unconstitutionality.) Were Obama to intend his words as pressure on SCOTUS he'd also be undermining his efforts on DOMA.

Although this is more of a legal point than a political one, Obama was referring to the USSC invalidating a law based on the commerce clause as opposed to one like DOMA. The courts have invalidated a whole lot of social laws, but basically no economic laws like that.

Anyways, I totally agree that Obama is just preparing to run against the judiciary as well as the Republicans in Congress if the ACA is struck down or neutered or whatever. That was the point of his speech, not an attempt to strongarm the supreme court. It's just politics on Obama's part, but the courts are supposed to be above that.

 

[theeedude]

Gee, the opposition senate leader criticized the president. I never would have seen that coming.

How long will it take for someone to find McConnel statements on judicial activism and expose him as a hypocrite?

 

[monovillage]

Gee, the opposition senate leader criticized the president. I never would have seen that coming.

The same surprise I feel seeing the Democrat allied posters here criticizing a judge that criticized the Democrat president.

 

[theeedude]

The same surprise I feel seeing the Democrat allied posters here criticizing a judge that criticized the Democrat president.

Former clerks for Scalia and Kennedy are criticizing that judge too.

 

[fskimospy]

The same surprise I feel seeing the Democrat allied posters here criticizing a judge that criticized the Democrat president.

1.) I wouldn't have thought it merited a post to repeat that left leaning posters had criticized this judge.

2.) Criticism of this judge has come from across the ideological spectrum, and has generally been far more harsh.

I imagine at this point Judge Smith realizes the enormity of his mistake and will slink off quietly.

 

[monovillage]

Former clerks for Scalia and Kennedy are criticizing that judge too.

As many as are criticizing Obama for overstepping his authority?

 

[fskimospy]

As many as are criticizing Obama for overstepping his authority?

Can you point to statements by former Scalia/Kennedy clerks in which they are criticizing Obama for overstepping his authority?

 

[monovillage]

Can you point to statements by former Scalia/Kennedy clerks in which they are criticizing Obama for overstepping his authority?

Give me a list of all their names and i'll look them up for you.

 

[fskimospy]

Give me a list of all their names and i'll look them up for you.

Here's a good start:
http://en.wikipedia.org/wiki/List_of_law_clerks_of_the_Supreme_Court_of_the_United_States

Have at it!

 

[theeedude]

As many as are criticizing Obama for overstepping his authority?

In what way? He hasn't done anything to "overstep his authority", just given a speech. He has not just authority, but constitutionally protected right to free speech.

 

[monovillage]

Here's one saying that Obama should know better. Is this the one?

http://edition.cnn.com/2012/04/03/opinion/presser-obama-supreme-court/?hpt=hp_bn4

Editor's note: Stephen B. Presser is the Raoul Berger professor of legal history at Northwestern University School of Law and a professor of business law at Northwestern University's Kellogg School of Management. He signed two of the amicus briefs submitted to the Supreme Court challenging the health care law.

 

[monovillage]

Here's one saying that Obama should know better. Is this the one?

http://edition.cnn.com/2012/04/03/opinion/presser-obama-supreme-court/?hpt=hp_bn4

or the one from his ex-law student?
http://nation.foxnews.com/thom-lambert/2012/04/05/former-obama-law-student-speaks-out

oops

 

[theeedude]

Here's one saying that Obama should know better. Is this the one?

http://edition.cnn.com/2012/04/03/opinion/presser-obama-supreme-court/?hpt=hp_bn4

He is one of the litigators against Obamacare. Where does he say Obama has overstepped his authority when giving that speech?

 

[theeedude]

or the one from his ex-law student?
http://nation.foxnews.com/thom-lambert/2012/04/05/former-obama-law-student-speaks-out

oops

Nothing about overstepping authority in that one either.

oops

 

[fskimospy]

Here's one saying that Obama should know better. Is this the one?

http://edition.cnn.com/2012/04/03/opinion/presser-obama-supreme-court/?hpt=hp_bn4

You're quoting people who submitted amicus briefs opposing the health care law? Our point was that the judge was being criticized by conservative and liberal jurists alike. I'm not sure how linking to a guy helping to litigate against the law is really refuting that.

Anyways, he doesn't say that Obama is overstepping his authority, just that he is wrong. Also, not a former clerk as best as I can tell.

So no, not really doing much.

 

[piasabird]

There are no reputable news agencies!

 

[woolfe9999]

Although this is more of a legal point than a political one, Obama was referring to the USSC invalidating a law based on the commerce clause as opposed to one like DOMA. The courts have invalidated a whole lot of social laws, but basically no economic laws like that.

Yes, and the DoJ letter cites authority on that very point. The last sentence of the second last paragraph. This is what Obama meant by "unprecedented." I suppose he could have been clearer and mentioned the commerce clause and/or economic legislation. Apart from that, his description of the margin of victory for passage of the law was an exaggeration. Otherwise, I can't find much fault in what he said.

Your points above about the judiciary are also correct. The one thing judges cannot afford is to lose the perception of impartiality. We expect partisanship from Congress and the POTUS, not so much from the judiciary.

 

[monovillage]

Just Obama's ex student and other legal experts that say Obama was wrong. OK. So we get some people saying Obama was wrong and some people that say the Judge was wrong? Usually based on their own political stances?
Reading this thread earlier it seemed that the judge was being widely disparaged and criticized while pretty much everyone else agree with Obama, I guess my impression was wrong. My mistake.