Washington, D.C.
Obama speaks about the Supreme Court
Echoing a long-standing claim of the Right, he accuses the Warren and Burger Courts of judicial activism
(updated below - Update II)
President Obama gave an interview last night aboard Air Force One in which he was asked about his views of the Supreme Court, and this is what he said:
It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically. And in the ’60s and ’70s, the feeling was, is that liberals were guilty of that kind of approach.
What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.
The reason this is so striking is because it’s long been a right-wing Article of Faith that the Supreme Court in those two decades — the Warren Court (until 1969) and then the Burger Court — was guilty of so-called “judicial activism.” Conversely, liberals have long viewed those two courts as the high point of the judiciary’s protection of Constitutional liberty, and with good reason (note that defenders of Elena Kagan have been claiming she’d be “the next Earl Warren,” which they mean as a compliment). Those were the Courts of William Brennan, Thurgood Marshall, William O. Douglas, and Hugo Black, among the most admired progressive Supreme Court Justices of the last century. I’d really like to know what Obama means specifically when he adopts the Right’s view by condemning those courts as being guilty of “erroneous” judicial activism.
The Supreme Court in the 60s and 70s produced many of the decisions most cherished by mainstream progressives. That was when the right to privacy was first recognized in Griswold, anti-miscegenation statutes were struck down in Loving, public school officials were barred from imposing sectarian prayer in Engel and mandatory Bible readings in Abington, defendants’ rights were safeguarded in Miranda, the right to counsel was mandated in Gideon, reproductive rights were protected in Roe, religious freedoms were enhanced in Sherbert, Fourth Amendment guarantees against unreasonable searches and seizure were strengthened with the exclusionary rule in Mapp and by application to telephone eavesdropping in Katz, critical First Amendment safeguards were enforced in Brandenburg and The Pentagon Papers case (NYT v. U.S.), the rule of law was aggressively applied to Richard Nixon when the Court unanimously ordered him to comply with Congressional subpoenas, and the promise of equal protection enshrined in Brown v. The Board of Education (a decision of the Warren Court) was carried through with a series of decisions applying those principles to states and localities.
These decisions form the bedrock of progressive legal thought regarding the Constitution and the Supreme Court, which is why it’s rather bizarre to hear Barack Obama condemn unspecified aspects of it as “judicial activism errors.” Shouldn’t he be asked which specific parts of the judicial approach in these two decades he finds to be disturbing? It’s possible that he had something relatively innocuous in mind, that he intended to make a different point than the one he made, or that it was just a sloppy though typical effort to show how fair-minded he is by attacking the Dreaded Left, but the way he expressed it was a virtually complete replica of decades-old right-wing attacks on the Supreme Court. Perhaps this explains why two of his reputed top 3 candidates to replace Justice Stevens are Elena Kagan and Merrick Garland (a former prosecutor whom Charlie Savage described this week by suggesting “that he could be more of a center-right justice in matters of criminal law”).
* * * * *
I’ve written extensively about the U.S. media’s refusal to use the word “torture” to describe what the United States does, while using that term promiscuously to describe the same behavior from other countries. John Cole today notes a particularly egregious example of that distorting, government-subservient practice.
UDPATE: Several people, in comments and via email, argue that Obama did not intend in these comments to endorse the view that there was judicial activism in the 1960s and 1970s, but merely that conservatives are being hypocritical in doing now what they accused liberal judges back then of doing (see here and here for two examples of that objection). That’s definitely possible; I explicitly acknowledged that there was ambiguity in what Obama said and that “it’s possible that he had something relatively innocuous in mind,” which is why he should be asked what he meant. But I think my reading of his comments is, at the very least, reasonable, for reasons I explain here. Perhaps we can hear a clearer statement from him on whether he thinks, as he seemed (to me) to say here, that liberal Justices in these two decades were guilty of the “error” of judicial activism and, if so, in which instances.
On a related note, The Huffington Post‘s Sam Stein today documents and examines Elena Kagan’s support for some of George Bush’s most controversial right-wing judicial nominees. I suppose it’s nice to learn that she’s able to take a public position on something.
UPDATE II: CNN has a moderately interesting update on Obama’s search for Stevens’ replacement:
The White House has begun finalizing its list of potential nominees for the upcoming Supreme Court vacancy, with many senior administration officials privately urging the president to name someone with a proven, “reliable” liberal record, according to sources closely involved in the selection process. . . . Government sources say top Obama aides have been getting an earful from liberals, who want to ensure a strong voice from the left is chosen, not a so-called “compromise” choice that could ensure a smoother confirmation this summer. They worry a nominee perceived as having a moderate-liberal record could lock Democrats into a position of never being able to win approval of future Obama judicial and executive branch nominees with more liberal views. . . .
One issue that has raised particular red flags on the left is executive power, and whether Obama has done enough to reverse the scope of anti-terror policies from the Bush administration dealing with detaining and prosecuting suspects. Some human rights groups say the current president and his aides have in some cases been too eager to embrace an expansive view of unilateral power. . . .
About 10 candidates remain on the “short list,” which is now being pared down to about three or four finalists. . . . Sources with knowledge of the internal vetting process say the focus remains on three people: Solicitor General Elena Kagan; federal appeals judge Diane Wood, based in Chicago; and federal appeals judge Merrick Garland, who works in Washington.
Kagan is believed by many to be the leading candidate, but her lack of judicial experience and her work defending the administration’s anti-terror policies worry some progressives.
These reports are anonymous, so take them for what they’re worth.
Follow Glenn Greenwald on Twitter: @ggreenwald. More Glenn Greenwald.
D.C. firm inks lucrative public-relations contract with Bahrain
As the Gulf monarchy cracks down on an international aid group, it hires Qorvis for $40,000-per-month P.R. job
A Shiite Bahraini woman gestures as others shout anti-government slogans outside a public forum Saturday, July 23, 2011, outside a religious community center in Sanabis, Bahrain, denouncing the alleged destruction and vandalizing of Shiite mosques, community centers and cemeteries during a government crackdown on a largely Shiite spring uprising. Clerics who spoke during the meeting, blamed Saudi Arabia for targeting religious sites, because they allegedly distrust their own Shia minority and sent forces to help quell the Bahrain uprising. (AP Photo/Hasan Jamali)(Credit: AP) Bahrain is in the news again, this time for what appears to be the comically evil persecution of the humanitarian group Doctors Without Borders.
So, naturally, the ruling monarchy of the Gulf nation has hired a top Washington public relations firm to burnish (or attempt to salvage) its image, according to a new foreign agent registration filing. Qorvis Communications will be paid $40,000 per month, plus expenses, for the public relations work, according to a contract submitted to the U.S. Department of Justice.
Continue Reading CloseJustin Elliott is a reporter for ProPublica. You can follow him on Twitter @ElliottJustin More Justin Elliott.
Poll: Public sides with Obama on deficit
The potentially catastrophic effects of a default are finally sinking in with Americans
In this July 14, 2011, file photo, President Barack Obama sits with House Speaker John Boehner of Ohio, House Minority Leader Nancy Pelosi of California, House Majority Leader Eric Cantor of Virginia, as he meets with Republican and Democratic leaders regarding the debt ceiling in the Cabinet Room of the White House in Washington, Thursday, July 14, 2011. Obama's decision to haul lawmakers in day by day to negotiate a debt deal comes down to reality: He has no other choice. The president has essentially cleared his agenda to deal with one enormous crisis. (AP Photo/Charles Dharapak)(Credit: AP) Most Americans want to see a compromise on the debt ceiling, according to a new NBC/Wall Street Journal poll.
62 percent of self-identified Democrats said they would want Democratic leaders in the House and Senate to make compromises to gain consensus on the current budget debate, while only 43 percent of Republicans want to see their party leaders concede some of their positions. However, around 70 percent of independent respondents said they wanted to see both parties compromise.
Continue Reading CloseNatasha Lennard covers the Occupy movement for Salon. A British-born, Brooklyn-based journalist, she has been covering Occupy Wall Street since before the first sleeping bag was unrolled in Zuccotti Park. One of the first journalists arrested at an Occupy action, she has managed to enrage Andrew Breitbart, Rush Limbaugh and Glenn Beck. You can follow her on Twitter (@natashalennard), and email her any Occupy updates/videos/ideas to natasha.lennard@gmail.com More Natasha Lennard.
Lobbyists are overtaking Congress
Since the GOP takeover, the number of lobbyists in congressional staff positions has more than doubled
(Updated below)
A new report from the Center for Responsive Politics (CRP) looks at the pervasiveness of former lobbyists now working in congressional staff positions. The number of former lobbyists in Congress has more than doubled between the last Congress and the current one, with a significant partisan skew. In the current 112th Congress, 79 former lobbyists work for Republicans while 48 for Democrats; during the Democratic-led 111th Congress (which ran from 2009-2010), 33 worked for Democrats, while 27 worked for Republicans.
Continue Reading CloseNatasha Lennard covers the Occupy movement for Salon. A British-born, Brooklyn-based journalist, she has been covering Occupy Wall Street since before the first sleeping bag was unrolled in Zuccotti Park. One of the first journalists arrested at an Occupy action, she has managed to enrage Andrew Breitbart, Rush Limbaugh and Glenn Beck. You can follow her on Twitter (@natashalennard), and email her any Occupy updates/videos/ideas to natasha.lennard@gmail.com More Natasha Lennard.
Shariah law instituted steps from the White House!
Predicting an overblown right-wing outrage
Do I spot crescents in this CityCenterDC promotional brochure? There is a giant real estate development happening in downtown Washington, D.C., near the White House, on the site of the old convention center. Boring news for non-D.C. residents. But I’m willing to bet that the CityCenterDC complex — office space, retail, condos, your standard massive downtown “revitalization” project — will soon be very interesting to a lot of people who don’t live in the area. Not because anyone cares about urban land-use issues, but because of one of the project’s investors: Muslims.
Continue Reading Close
Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at apareene@salon.com and follow him on Twitter @pareene More Alex Pareene.
What line between civilian and military authority?
An increasingly powerful Pentagon is taking over the culture of Washington
U.S. President Barack Obama meets with troops at Bagram Air Base, December 3, 2010. I have a fairy tale for you. Once upon a time, a representative democracy was established with a constitution that distilled the wisdom of the ages. Its foundational principles included civilian control of the military and a system of checks and balances that encouraged vigorous public debate as a basis for effective policy-making.
In this fabled land, the role of civilian leaders was, in part, to serve as a check on military ambition and endless wars. They were to prove cautious, too, in committing their citizen-soldiers to battle, and when they did, they would issue Congressional declarations of war so that everyone could grasp the nature of the national emergency at hand and the necessity of military action. In waging war, they would rely on shared sacrifice and even raise taxes. When necessary, it was their job to rein in or even remove military leaders who acted like Caesar (read: General Douglas MacArthur) rather than Cincinnatus (read: General George Washington).
Continue Reading CloseWilliam J. Astore is a retired lieutenant colonel. He has taught cadets at the U.S. Air Force Academy, officers at the Naval Postgraduate School, and currently teaches at the Pennsylvania College of Technology. He is the author of "Hindenburg: Icon of German Militarism," among other books. He may be reached at wastore@pct.edu. More William Astore.
Page 1 of 272 in Washington, D.C.