There are only two explanations for what Barack Obama said this week about the Supreme Court: He believes that the court — and not just the current, rightwing incarnation, but the liberal court of the ’60s and ’70s — has been too activist in its approach, or he is attempting to defang the right as he moves to replace Justice John Paul Stevens.
Here is what he said on Air Force One on Wednesday about the court (I saw this initially on Glen Greenwald’s blog, but the quote is from the Atlanta Journal Constitution):
THE PRESIDENT: Well, I mean, here’s what I will say. 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. And I think rather than a notion of judicial restraint we should apply both to liberals and conservative jurists, what you’re seeing is arguments about original intent and other legal theories that end up giving judges an awful lot of power; in fact, sometimes more power than duly-elected representatives.
And so I’m not looking at this particular judicial nomination through that prism alone, but I think it is important for us to understand that judicial — the concept of judicial restraint cuts both ways. And the core understanding of judicial restraint is, is that generally speaking, we should presume that the democratic processes and laws that are produced by the House and the Senate and state legislatures, et cetera, that the administrative process that goes with it is afforded some deference as long as core constitutional values are observed.
Liberals need to read these comments closely. The president appears to be endorsing a very narrow view of the judiciary’s role, though it is possible he just chose his words without the requisite care. In any case, as Greenwald points out, the president should have been asked to explain what he meant and to offer examples of the kind of overreach he seems to be criticizing.
For liberals, this is important because the decisions made by the court in the 1960s and 1970s “form the bedrock of progressive legal thought regarding the Constitution and the Supreme Court,” and his comments are consistent with other cases in which he made a “typical effort to show how fair-minded he is by attacking the Dreaded Left.”
I’ve pointed this out before. Going after one’s base is foolish, but it is tried-and-true extablishment liberalism that dates back to the Clinton years, the willingness to sacrifice political principles to maintain some sort of legislative, electoral or public relations advantage. And it is something the president has proven himself adept at doing.
The problem, of course, is that doing so undercuts the very people who helped put him in office, which only contributes to the mix of apathy and anger out there that is moving us inexorably toward a political implosion. The scales used to address the big issues have been weighed down by a conservative thumb.
But that in and of itself is not the only criteria by which I’m making selections on judges.
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