Rosenthal who writes from a column at the New York Times called The Loyal Opposition, argued that Obama made a bad error in his comments yesterday about the Supreme Court currently judging his ACA law. According to Rosenthal, the President fumbled the court issue.
http://loyalopposition.blogs.nytimes.com/2012/04/03/the-president-fumbles-the-court-issue/
"Mr. Obama’s maladroit handling of the issue yesterday left me wondering if he is going to be able to make that case effectively in the fall."
"Mr. Obama was asked at a news conference about his health insurance reform law. He defended the constitutionality of the individual mandate that is at the core of the reform. He’s right about that, and it’s perfectly appropriate for him to defend the law."
"But instead of offering a considered argument about the mandate’s constitutionality and the court’s jurisdiction in this case, he fumbled and stumbled into the ideological swamp usually occupied by Republicans when it comes to the court."
“I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint, that an unelected group of people would somehow overturn a duly constituted and passed law,” he said. “Well this is a good example and I’m pretty confident that this court will recognize that and not take that step.”
"The reaction from the right was ridiculous. Conservative websites ran headlines saying that the president had made an outrageous attack on “unelected” judges. Senator Orrin Hatch, the Republican from Utah, called it a “fantasy” to think “every law you like is constitutional and every Supreme Court decision you don’t is ‘activist.”
"That is precisely the Republican yardstick for judging court decisions. The right consistently attacks the court with the argument that federal judges are unelected. Of course they are. That was exactly what the framers had in mind when they wrote the constitutional directive that federal judges be nominated by the president and confirmed by the Senate, shielding them from the whims and pressures of political campaigns. It’s an especially important protection these days, when large moneyed interests are free to buy any election they want."
"Judges, in the nation’s system of separated powers, are assigned a distinct role, and it is not to be politicians in black robes. The protection of Americans’ rights depends on having independent and fair-minded judges willing to strike down laws that trample on the Bill of Rights or otherwise overstep the constitutional powers of the executive branch—even when it may not be the popular thing to do. What courts should not do is second-guess legislative judgments that are well-within Congress’s proper authority, based on ideological or policy differences. That is precisely the worry in the pending case of the Affordable Care Act."
"But Mr. Obama did not say that. He reduced the issue to a quick-and-easy sound bite and left himself open for the Republican attack with his ill-considered comments. In the case of the individual mandate, the issue is whether this court will sweep aside deeply established judicial precedent and cripple the government’s ability to enforce the constitution’s commerce clause. The mandate is clearly within that established legal framework. It’s also troubling that some justices are more focused on whether they like this law than whether this law is constitutional."
"That is the argument Mr. Obama needs to make. His comments yesterday were a bad start."
I do think talk of "judicial activism" is probably overdone. Maybe that's not the correct complaint. It is tempting for liberals to use this Right wing phrase if for no other reason to point out the hypocrisy of the Right wing talk of judicial activism-if you shouldn't legislate from the bench which was a more egregious case of it than deciding the outcome of Bush-Gore in 2000?
However, when Rosenthal says this:
"Judges, in the nation’s system of separated powers, are assigned a distinct role, and it is not to be politicians in black robes. The protection of Americans’ rights depends on having independent and fair-minded judges willing to strike down laws that trample on the Bill of Rights or otherwise overstep the constitutional powers of the executive branch—even when it may not be the popular thing to do. What courts should not do is second-guess legislative judgments that are well-within Congress’s proper authority, based on ideological or policy differences. That is precisely the worry in the pending case of the Affordable Care Act."
he's right that the worry is that the SJC will rule based on ideological or policy differences, but this is in the model he says protects us-unelected, life time appointments. It's tough to see how elected judges could be any more politically motivated than this Right wing court has been in recent years-Bush-Gore the ultimate outrage.
One thing that's hard to square is the whole idea that the Court is somehow above politics. They are all from a particular party, and appointees of a particular President from a particular party. You can argue that elected judges would have to question themselves more. If you have a life time job as the Supremes do, where is the disincentive from politicizing your verdicts? You can't be taken from office in any case. The SJC reflects the outcomes of elections. It's the spoils system. What's more it's frozen as we are still at the mercy of the elections Reagan won in the 80s. Indeed even though it's true that if Obama wins re-election he might get to do at least two new appointees, of the 4 justices currently over 70, three are actually either liberal-or Anthony Kennedy who's the swing vote. Only one conservative clearly up soon-Scalia
The oldest is actually Ruth Bader Ginsberg which makes you ask what Clinton was thinking. Whether or no you like her-I do for the most part-she is the oldest on the court at 79. Clarence Thomas who Bush Sr. had appointed in the previous Administration to Clinton is still only 63. Did Clinton not consider age at all? How is it that she is older than all the Reagan-Bush appointees?
In any case there is nothing particularly fair in all this. If these judges were either elected or served for limited terms we would be much less at the mercy of whoever was lucky enough to be elected at a fortuitous time-Reagan.
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