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.

Christine O’Donnell Flunks Remedial Republicanism

The latest Tea Party Mama Grizzly to ascend within the ranks of the GOP asylum is Delaware candidate for senate, Christine O’Donnell. Last Tuesday O’Donnell defeated “moderate” Republican, Mike Castle and will face Chris Coons in the general election in November. This should be fun considering her record as an unabashed schizoid. But between now and then she will have to undergo an extreme right-wing makeover.

After O’Donnell’s surprise victory she immediately announced that she would appear on both Fox News Sunday and CBS’s Face the Nation. But she just as quickly canceled both appearances. This is in keeping with the Republican model this year. Both Rand Paul and Sharron Angle did much the same thing.

The reason O’Donnell canceled is because she had to attend Remedial Republicanism classes (RemGOP 101). As an inexperienced Tea Bagging nominee she has not been properly prepared for her new, high profile, public role. So despite her initial agreement to talk to the press, her handlers have been instructed to reverse course so that her coaching can begin first.

There is much to learn for someone in her position. She has to become acquainted with Facebook and Twitter, and make those the primary outlets for her public statements. This is critical because those platforms protect her from actually engaging in a dialogue or having to respond to annoying questions about her background or agenda. She also has to learn how to dodge, obfuscate, mislead, and smear. These skills are important in the event that she finds herself in a position where she is unable to evade a conventional reporter.

In the few hours after her primary win, O’Donnell made some embarrassing gaffes that illustrate the need for sequestering her in the RemGOP re-education facility. She proved that she doesn’t even know basics like Media Freeze-Out. The fact that she would book a non-Fox interview is evidence of just how far behind she is in her studies. To catch up she will have to buckle down and cram for the next few days.

Luckily she has many experienced tutors to help her bone up for the final exam on November 2nd. Paul, Angle, Joe Miller, Ken Buck, and of course, Sarah Palin, have all demonstrated their expert ability to avoid all press contact except, of course, for Fox News. And even then, stay away from “news” related programming by only visiting friendly, partisan, hacks, like Bill O’Reilly and Sean Hannity.

O’Donnell must heed the advice of her mentors. Sarah Palin recently told Fox’s O’Reilly that O’Donnell should “Speak through FOX News.” Sharron Angle has a policy of only appearing on TV programs that allow her to beg for money. These are amongst the lessons that O’Donnell needs to internalize and adhere to.

It’s a good thing for these GOP cowards that the media doesn’t care if they are being played for saps. Palin can fire off rounds from the safety of her Facebook page and the press dutifully reports it as if it were newsworthy. Angle, Paul, and the others can flaunt their delinquency knowing full well that what they say on Fox News, or at podiums before Tea Bagger rallies, will still be covered by the rest of the media stenographers. Bob Schieffer of Face the Nation demonstrated the typical behavior of the compliant press when O’Donnell backed out of her booking. Schieffer booked GOP strategist Ed Rollins instead. It never occurred to Schieffer to call Chris Coons, O’Donnell’s Democratic opponent, who ought to be just as timely a guest, except for the fact that he isn’t a whack-job Republican.

So don’t expect to see much of O’Donnell between now and election day outside of the warm confines of Fox News. The same goes for her role models and mentors. If there is one thing you can be certain that the right-wing does well, it’s teaching their wards how to dodge scrutiny and manufacture their own PR.

The Figment Of The Center-Right Imagi-Nation

Throughout much of last year’s presidential campaign, and right on through the first weeks of Barack Obama’s administration, the media has persistently peddled the falsehood that America is a center-right nation, politically and socially. Now Media Matters has published a study (full pdf here) that thoroughly debunks this notion, and they do it by using surveys and facts that realistically portray the ideological character of the country – something the media may want to check in to.

The Media Matters study is a comprehensive look at the American electorate. It covers virtually every one of the most debated subjects of public discourse: Size of government; health care; taxes; abortion; gay rights. It also examines the demographics of age, ethnicity, gender, and geography. And every case the evidence shows that America is a progressive, and yes, a center-left nation.

And nowhere is this more misunderstood than in the media:

  • Tom Brokaw (NBC): “This country, even with the election of Barack Obama last night, remains a very centered country, or maybe even center-right in a lot of places.”
  • Jon Meacham (Newsweek): “…insisted that to govern successfully, Obama had to become a center-right leader in order to match America’s ‘instinctively conservative’ streak.”
  • David Broder (Washington Post): “…warned that too many victorious Democrats in Congress had ‘ideas of their own about what should be done in energy, health care and education.’”
  • Karl Rove (Fox News): “Barack Obama understands this is a center-right country.”
  • Chris Wallace (Fox News): “You could make the argument that this is still a center-right country.”
  • Chris Matthews (MSNBC): “I’ve noted that we’re right of center except when we’re in a crisis, when we’re left of center.”
  • Bob Schieffer (CBS): “These Democrats that were elected last night are conservative Democrats.”

I’m not sure exactly why the press is so brain dead in this regard. It’s not as if the record isn’t crystal clear. Obama was portrayed by Republicans, and most of the press, as a liberal extremist – even as a Socialist, or worse. And yet, Obama won a decisive victory. Democrats have also been winning larger majorities in the Congress with each election cycle. And Obama’s approval rating have maintained stratospheric levels. The public supports the President’s policies even when they are told that it may increase their taxes.

At the other end of the scale, Republicans are descending into historical depths of disrepute. Their de facto leaders are universally despised figures like Dick Cheney and Rush Limbaugh. Their policies, I’m sure, would be rejected with equal disdain, if they were to articulate any. As it is, they just regurgitate the same old slogans they have been chanting for decades, and those are not particularly well received.

It will be interesting to see what it will take to get the media to recognize what the rest the country already knows. This is a nation that has had its fill of rightist greed and incompetence. We have ousted many of the representatives in public office who led the nation down a path of war and recession. While we can, and did, adjust the make up of our government to more closely reflect our values, it will not be as easy to fix the media. But that doesn’t mean we should stop trying.