The debate over President Obama’s verbal confrontation with the Supreme Court (see Gavel Grab) showed no sign of letting up at week’s end, even as Attorney General Eric Holder affirmed that federal courts have authority to strike down federal laws.
Obama on Monday said he was confident the Supreme Court would uphold the constitutionality of the federal health care law, and he warned about the perils of “judicial activism.” Although he backpedaled on Tuesday, his comments drew both applause and brickbats.
On Thursday, Senate GOP Leader Mitch McConnell of Kentucky said Obama “not only tried to publicly pressure the court into deciding a pending case in the way he wants it decided, he also questioned its very authority under the Constitution,” according to a USA Today article. The president, McConnell said, should “back off.”
Washington Post columnist Charles Krauthammer challenged Obama’s remarks as “a pre-emptive attack on the court” coming from “the leader of a party so deeply devoted to the ultimate judicial usurpation.” A Lynchburg (Va.) News & Advance editorial found Obama’s remarks “injudicious”:
“Such posturing might be expected from a freshman U.S. representative or an ego-driven U.S. senator, but for the president, the head of the Executive branch to be complaining ‘unelected federal judges’ is more than a bit troubling. It’s even fertile ground for a constitutional law professor (as Obama once was) to plow, but for a president to so overtly confront the Court?”
From a different vantage point, the Baltimore Sun editorialized:
“President Obama misspoke (somewhat embarrassingly so for a former law professor), but he clarified his remarks one day later. One can hardly blame the president for expressing support in his signature bill or in observing the considerable precedent on his side — a point made by numerous constitutional scholars since before the measure was approved two years ago.”
At the Daily Beast blog, Jeff Shesol, author of a book about the Supreme Court and President Franklin Delano Roosevelt, wrote a commentary entitled, “Obama Follows Reagan, FDR in Airing Supreme Court, Constitution Views/He’s supposed to have an opinion about the Constitution and the Supreme Court. Why this president needs to speak out more — just like FDR and Reagan did.”
Andrew Cohen wrote in the Atlantic about Fifth U.S. Circuit Court of Appeals Judge Jerry Smith, who questioned in the courtroom the meaning of Obama’s remarks and sought clarification from the Justice Department. Cohen’s piece was headlined, “The Misplaced Indignation of the Judge Who Criticized Obama.”
Attorney General Holder on Thursday advised Judge Smith and fellow judges on the Fifth Circuit, “The power of the courts to review the constitutionality of legislation is beyond dispute.” Holder also said courts should show “deference” to the “legislative judgments of Congress,” according to a Washington Post article.
Former Attorney General Alberto Gonzales, appointed by President George W. Bush, told Fox News regarding Judge Smith, “[I]f I were in his shoes, I’m not sure that I would have done the same as he requested. But I’m not going to second guess the justice here.”