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In Iowa, Louisiana Gov. Jindal Ridicules Judges

Louisiana Gov. Bobby Jindal lashed out at what he called judicial activism and also ridiculed judges when he participated in a bus tour promoting the ouster of an Iowa Supreme Court justice, David Wiggins.

If judges choose to author liberal-leaning laws, they should run for a legislative office, the Republican governor told a rally in Marshalltown. “This isn’t about Justice Wiggins’ liberal views,” Jindal said, according to a Des Moines Register article. “If he wants to espouse them, God bless him, I wish him luck in running for the legislature. I wouldn’t suggest you vote for him, but I wish him luck.”

Speaking of judges around the country, Jindal got a big laugh when he said, “Some of these judges, they actually make the replacement refs in the NFL look like geniuses.” Jindal is one of two national Republican figures to join the anti-retention bus tour. Former GOP presidential candidate Rick Santorum also has participated.

A rival “Yes to Iowa Judges” bus tour, organized by those wanting to keep Justice Wiggins and other judicial candidates on the bench, has been following the same route across Iowa, NPR reported in an article entitled, “Another Iowa Judge Faces Ballot Box Battle Due To Same-Sex Marriage Ruling.” Justice Wiggins has become an ouster target over his participation in a unanimous court ruling that permitted same-sex couples to marry; three fellow justices were dumped in a 2010 retention election.

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GOP Senator: Don’t Let Politics Trump Judicial Qualifications

Republican Sen. Lindsey Graham told the ABA annual meeting that he’s concerned about politics trumping qualifications when it comes to the Senate confirming judicial nominees.

The independent status of the federal judiciary is being put at risk by politics, Graham said, according to an ABA Journal article.

“I’m really worried about how we’re doing confirmations,” said the senator from South Carolina and member of the Senate Judiciary Committee. “They’re turning into political events. I’m a conservative, and I’d like conservative judges on the federal bench,” Graham said, but if voters re-elect President Obama, then “his nominees are entitled to be confirmed as long as they’re qualified.”

Graham added, “The question is, are you qualified? It’s stupid to pick on something you said in law school, and pick on this or pick on that. I’m not worried about judicial activism. I’m worried about Senate activism.”

The senator also said judicial independence is threatened by Congress’s reticence to pay higher salaries to federal judges.

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Roberts in Spotlight; His Health Care Act Role Examined

Some analysts have rushed to commend Chief Justice John Roberts Jr., who stunned most observers by casting the deciding vote to uphold the core provision of the Affordable Care Act. Other analysts cautioned against premature adulation.

“Roberts Shows Deft Hand as Swing Vote on Health Care,” declared the headline for a New York Times analysis by Adam Liptak, who said the chief justice’s “defining and delicate role in upholding the health care law will always be associated with his tenure.”

Jeffrey Rosen, a George Washington University law professor, described “a dramatic vindication of the vision of bipartisanship that Chief Justice Roberts articulated at the start of his term,” according to a McClatchy newspapers article.

“With this deft ruling, Roberts avoided what was certain to be a cascade of criticism of the high court,” UCLA Law Professor Adam Winkler wrote in Huffington Post. “Had Obamacare been voided, it would have inevitably led to charges of aggressive judicial activism. Roberts peered over the abyss and decided he didn’t want to go there.”

But historian Jeff Shesol, author of a book about the Supreme Court and President Franklin Delano Roosevelt, suggested putting the brakes on crediting Chief Justice Roberts for statesmanship and judicial modesty. His essay in Slate was entitled, “Why our crush on the chief justice is silly—and undeserved.”

“[Thursday’s] outcome, to be sure, is worth celebrating. But the lionization of John Roberts does not withstand a reading of his opinion,” Shesol wrote. He took strong issue with the Read more

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Roberts Casts Deciding Vote; ‘Activist’ or ‘Referee’?

By casting the deciding vote to uphold the central provision of the hugely controversial Affordable Care Act, Chief Justice John Roberts Jr. surprised many observers. He was praised by some liberal pundits and criticized by some conservatives following the 5-4 ruling (see Gavel Grab).

“It’s a terrible day for the American people,” said Rep. Michele Bachmann, a Minnesota Republican who ran for president, according to Salon. “This was an activist court that rewrote the law to make it even more ineffectual, and even more expensive.

A National Review Online headline trumpeted “Chief Justice Roberts’s Folly.” The editorial protested:

“The Constitution does not give the Court the power to rewrite statutes, and Roberts and his colleagues have therefore done violence to it. If the law has been rendered less constitutionally obnoxious, the Court has rendered itself more so. Chief Justice Roberts cannot justly take pride in this legacy.”

Wrote Ross Douthat in a New York Times essay, “Obamacare seems to have been saved by Chief Justice Roberts’s decision to put political considerations ahead of a straightforward reading of the health care bill.”

From an opposite vantage point, Andrew Rosenthal wrote in a New York Times blog, “This is going to be hard for right-wingers to swallow, since Chief Justice Roberts was their great standard bearer for conservative judicial and political thought and against ‘judicial activism.’ But he has enhanced, in no small way, the reputation of a court whose standing has suffered greatly since Bush v Gore.”

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Commentary: When ‘Judicial Activism’ Claims are Misguided

Commentators are continuing to grapple with the issue of what constitutes judicial activism, and what doesn’t. The issue is not new, but it heated up this month when President Obama made remarks about the Supreme Court and the future of his federal health care overhaul, from which he backpedaled only a day later.

In the Wall Street Journal, David B. Rivkin Jr. and Lee A. Casey, attorneys who formerly worked in the U.S. Justice Department under Republican presidents, tackle the issue with a commentary entitled, “Overturning ObamaCare Isn’t ‘Judicial Activism.’”

Rivkin and Casey represented 26 states that challenged the constitutionality of the new federal health care law at the trial and appellate court level. “‘Judicial activism’ is one of those agreeably ambiguous terms that can support almost any criticism of the courts,” they write in the commentary.

The authors reprise at length their legal reasoning behind an analysis that the federal health care law exercises powers that Congress has been denied. Then they return to the broader issue at hand. “If, as in this case, Congress persists in adopting legislation that goes beyond its constitutional authority, the courts must invalidate it,” they assert. “That is not judicial activism. It is the fulfillment of the judiciary’s constitutional duty.”

You can learn about other views in the recent debate over claims of “judicial activism”  from Gavel Grab, including a Des Moines Register editorial suggesting the debate has been useful. Read more

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Pelosi on Courts: Lawmakers’ Court-Stripping a Danger

House Democratic Leader Nancy Pelosi is warning of the dangers of court-stripping legislation. Such measures “deny Americans the right to challenge the constitutionality of a statute,” Pelosi cautions in a Chicago Tribune op-ed, entitled “Respecting the Constitution and the role of the Supreme Court.”

Justice at Stake, on its website, calls court-stripping measures and actions  a threat to fair and impartial courts. Court-stripping involves “the removal of specific cases, or types of cases, from a court’s jurisdiction,” JAS states. “This prevents courts from playing their vital role in our system of checks and balances—protecting individual rights, and ensuring that other branches of government uphold the law and Constitution.”

Pelosi writes that House Republicans have spearheaded numerous efforts to prohibit federal courts from conducting legal reviews, including reviews of the constitutionality of a law, and passed in 2004 the Marriage Protection Act, which barred U.S. courts from reviewing the constitutionality of the Defense of Marriage Act. She also cites the House twice passing the Pledge Protection Act, which would have outlawed the ability of courts to hear challenges to the Pledge of Allegiance.

Pelosi discussed her concerns about court-stripping in the context of debate over Supreme Court review of the constitutionality of the Affordable Care Act and over President Obama’s recent warnings of the dangers of “judicial activism” by “unelected” judges (see Gavel Grab).


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Editorial Finds Value in Debate Over ‘Judicial Activism’ Claims

The nation’s latest debate over claims of “judicial activism” has served a useful purpose, according to a Des Moines Register editorial. Entitled “Consensus is ‘activist’ label is stupid,” the editorial drew this conclusion:

“There now is acknowledgement that the courts have a proper role in saying what the law is under the Constitution. And hurling the ‘activism’ accusation when a court rules against you has now been condemned from both ends of the political spectrum.”

President Obama touched off the latest round of debate when he warned of the perils of “judicial activism” by “unelected” judges, referring to the Supreme Court. He later backpedaled (see Gavel Grab). Conservatives who had made similar assaults in the past jumped into the fray.

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Commentary: When Judicial Impeachment Talk is Dangerous

There’s no room in our constitutional system for talk about impeaching Supreme Court justices simply because critics disagree with their interpretation of the law, writes Chicago Tribune editorial board member Steve Chapman.

“To pillory or punish judges for doing their job undermines the legitimacy not just of the court, but of our entire constitutional system,” Chapman says in a column entitled, “The liberal attack on the court.” He is referring a blog post last week in which a law professor urged impeachment if the high court strikes down President Obama’s health care law.

Drawing a parallel with 1970, when House Republican leader Gerald Ford launched an effort to impeach liberal Justice William O. Douglas, Chapman notes the following:

“The effort to remove a justice over allegedly wrong views was an embarrassing failure then and would be again. Congress is not about to use the nuclear option merely because the party in power disagrees with the Supreme Court.”

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JAS: Obama’s Court Remarks ‘Did … Public Disservice’

The Justice at Stake Campaign has criticized President Obama’s remarks on the Supreme Court, saying Obama “did a significant public disservice by invoking phrases too often used to demonize our nation’s courts.”

In his remarks on Monday, Obama suggested that “judicial activism” by “unelected judges” could be blamed if his administration’s health care overhaul was struck down. Obama later clarified his remarks. Bert Brandenburg, JAS executive director, called in a statement on Friday for more tempered discourse:

“With the Supreme Court set to decide an unusual number of politically charged cases, Americans deserve better rules of engagement for discussing the work of the courts, so that we can debate critical legal issues without attacking the legitimacy of the judiciary. Leaders on all sides would help the public by respecting reasonable limits in discussing court rulings.”

Any claim that a court is ignoring the law should at least involve more than overturning an act of Congress, stirring wide public anger, or striking down long-held precedent, Brandenburg said. These usually comprise the circumstances that trigger the “vague charge of ‘judicial activism,’” he said, “which seeks to undercut the legitimacy of our courts by questioning the integrity of judges making a decision the attacker doesn’t like.”

Brandenburg noted that Obama was hardly alone in venting publicly his frustration with the courts, and that other critics occupying the White House have included Presidents Thomas Jefferson, Theodore and Franklin D. Roosevelt and George W. Bush.

“A president’s words carry a special weight,” Brandenburg said, “setting a positive or negative example for others to follow. However much Americans disagree over individual rulings, courts need to be free from political political pressure if they are going to apply the law fairly and protect our rights.

“Americans deserve vigorous debates over the role of the courts, the decisions of courts, and who becomes a judge. But political leaders should avoid undercutting the legitimacy of a constitutional branch of government.”

Justice at Stake is a a nonpartisan group dedicated to keeping courts fair and impartial. To learn about the latest exchanges in the debate over Obama’s remarks, see today’s related Gavel Grab post.



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Debate Over Obama’s Court Remarks is Unrelenting

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.”

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