Remember When Conservatives Were Against Unelected Judges And Judicial Activism?

In another brazen exercise in hypocrisy, conservatives have launched a coordinated attack on President Obama for remarks that were entirely reasonable and uncontroversial. The President was asked by a reporter how he would respond if the health care reform bill currently being debated by the Supreme Court were to be ruled unconstitutional. His response said in part…

“I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And 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. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.”

This has set off a round of panic attacks in right-wing circles as knee-jerk contrarians accuse Obama of undermining the constitution, subverting democracy, and even threatening the Supreme Court. Where any objective person can find the presence of a threat in the President’s remarks is beyond incomprehensible. It’s Obama Derangement Syndrome in action. Conservatives assert that these comments were intended by the President to be a warning for the justices deliberating the case. Never mind that Obama in no way implied that there would be consequences if the justices did not arrive at a particular ruling, only that he was confidant of a favorable outcome. That’s pretty much the position taken by anyone interested in a pending judicial proceeding. And as the President said explicitly, he was just reminding conservatives of their own long-held views on judicial activism.

The Right-Wing Noise Machine has been spinning feverishly to push this issue in order to damage the President and cast him as opposed to constitutional principles. Rush Limbaugh and Karl Rove called Obama a thug. Mark Levin said that he declared war on the Court. Fox Nation currently has at least eleven articles on this subject. And Fox News has been running numerous segments including one this morning that featured three former George W. Bush staffers to assert that what Obama said was unprecedented and nothing like anything that Bush ever said (see below).

Among the complaints being hurled by the right-wing, extremist opponents of the administration is that Obama’s use of the phrase “unelected judges” amounts to a form of tyranny and is an affront to judicial independence. But it is Republicans who have been more often associated with that phrase over the years as they brandish it every time a court rules against whatever pet litigation they are pushing – especially when it concerns reproductive rights or gay marriage. For example, here are a few instances when the very people lambasting Obama today used identical language when it served their purposes:

  • Mitt Romney: Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage.
  • Mitt Romney: The ruling in Iowa today is another example of an activist court and unelected judges trying to redefine marriage and disregard the will of the people as expressed through Iowa’s Defense of Marriage Act.
  • Rick Santorum: 7M Californians had their rights stripped away by activist 9th Circuit judges.
  • Newt Gingrich: Court of Appeals overturning CA’s Prop 8 another example of an out of control judiciary. Let’s end judicial supremacy
  • Speaker John Boehner: This latest FISA proposal from House Majority leaders is dead on arrival. It would outsource critical national security decisions to unelected judges and trial lawyers.
  • Rep. Roy Blunt (R-MO): Today, the decision of unelected judges to overturn the will of the people of California on the question of same-sex marriage demonstrates the lengths that unelected judges will go to substitute their own worldview for the wisdom of the American people.
  • Sen. Jeff Sessions: This ‘Washington-knows-best’ mentality is evident in all branches of government, but is especially troublesome in the judiciary, where unelected judges have twisted the words of our Constitution to advance their own political, economic, and social agendas.
  • Rep. Tom Feeney (R-FL): I’m appalled that unelected judges have irresponsibly decided to legislate from the bench and overturn the will of the people.
  • George W. Bush: This concept of a “living Constitution” gives unelected judges wide latitude in creating new laws and policies without accountability to the people.
  • Thomas Sowell: Unelected judges can cut the voters out of the loop and decree liberal dogma as the law of the land.
  • Laura Ingraham: We don’t want to be micromanaged by some unelected judge or some unelected bureaucrat on the international or national level.
  • Gov. Rick Perry: [The American people are] fed up with unelected judges telling them when and where they can pray or observe the Ten Commandments.
  • Pat Robertson: We are under the tyranny of a nonelected oligarchy. Just think, five unelected men and women who serve for life can change the moral fabric of our nation and take away the protections which our elected legislators have wisely put in place.
  • Robert Bork: We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.
  • Sen. Orrin Hatch: A small minority and their judicial activist allies are seeking to usurp the will of the people and impose same-sex marriage on all of the states. Ultimately, the American people, not unelected judges, should decide policy on critical social issues such as this one.
  • Steve Forbes: You have judicial activism, where unelected Supreme Court justices are trying to impose a state income tax.
  • Glenn Beck: Even if you agree that the role of government is to take wealth from one to another, should it be the role of unelected judges and justices that do this?
  • Sen. John McCain: We would nominate judges of a different kind [...] And the people of America – voters in both parties whose wishes and convictions are so often disregarded by unelected judges – are entitled to know what those differences are.
  • Justice Antonin Scalia: Value-laden decisions such as that should be made by an entire society … not by nine unelected judges.

If the conservatives quoted above were to be consistent, they would now be pleading with the court not to overturn the health care reform bill that was passed by super-majorities in both houses of congress. Instead, the right is aghast that a Democratic president would deign to remind them of their own principles and is clamoring for a judicial resolution. It has already been demonstrated that Republicans have no problem switching positions once Obama has agreed to them. Cap and trade and insurance mandates were both originally proposed by Republicans, but as soon as Obama announced support for the concepts the GOP reconsidered and insisted they were the socialist ideas of an aspiring dictator.

Now that one of the GOP’s favorite attack lines, judicial activism, has been usurped by the President, conservatives are crawling out of the woodwork to characterize it as an assault on the judiciary. Republicans have always defined judicial activism as the act of judges ruling against them. When judges rule in favor of the conservative position they regard it as following the constitution. So hypocrisy is not a particularly surprising development in this matter. But the degree to which it is demonstrated here may set new records for shamelessness.


Erwin Chemerinsky, Dean of the University of California Irvine Law School, wrote in his book, “The Conservative Assault on the Constitution” that…

Although there is no precise definition of judicial activism – it often seems to be a label people use for the decisions they don’t like – it seems reasonable to say that a court is activist if it overturns the actions of the democratically elected branches of government and if it overrules precedent. In fact, conservatives, including on the Supreme Court, often have labeled decisions striking down the will of popularly elected legislatures as ‘activist.'”

Activism is in the eye of the beholder, but there is no doubt that conservatives have been at the forefront of scolding courts for ruling against them. Taking that to the extreme is Newt Gingrich who recently told Bob Schieffer on Face the Nation that he advocated arresting judges to force them to defend unpopular decisions before Congressional hearings. If that isn’t a threat against the judiciary, what is?

The right has very little problem with violating the constitution when it comes to separation of powers. Just this week a conservative judge on the 5th Circuit Court of Appeals gave a Department of Justice attorney an unusual homework assignment. In a case unrelated to the one before the Supreme Court, Judge Jerry Smith wondered whether Obama was suggesting “that it is somehow inappropriate for what he termed ‘unelected’ judges to strike acts of Congress.” Then Smith ordered the attorney to produce a three page letter “stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced.”

It is difficult to imagine on what basis this judge has assumed authority to issue such an order. It is a blatantly political and petulant demand that can only be intended to insult and embarrass the DOJ and the President, and has no bearing on the case before him. The President never said that the Supreme Court could not overturn an unconstitutional law. He just said that he didn’t believe that this law was unconstitutional and therefore, in his view, and that of many legal experts, should not be overturned. Judge Smith is a bald-faced partisan and would be more at home on Fox News than on the bench.

The question is, what will Republicans say if the Court upholds the health care reform bill? Would that be an act of judicial tyranny against the will of the people (never mind that the bill was passed by the people’s representatives in congress with super-majorities in both houses)? And how can Republicans continue to rail against Roe v. Wade as the ultimate example of an activist judiciary now that they have established that such a charge is tantamount to tyranny and regarded as a threat?

The answer, of course, is that conservatives will do what they always do: pretend that their prior assertions never existed or don’t apply. They will trudge forward with blindfolds over their eyes and plugs in their ears, unimpeded by anything they said previously, no matter how badly it contradicts what they are saying now. It’s hypocrisy at its best and the Republican way of life.

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2 thoughts on “Remember When Conservatives Were Against Unelected Judges And Judicial Activism?

  1. Particularly well-written and articulated, Mark. If you were to post it in a FOX comment section, how long do you suppose it would take to be deleted?

    At least you may take comfort in the fact that the smarter hypocritical cons (oxymoronic?) are suffering from a huge case of cognitive dissonance. I do.

  2. I have a sneaky feeling that Obama is laughing his ass off over this one!

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