Obama Says Liberal Courts May Have Overreached

[jimmy olsen]

A rather surprising statement by the O-man.

http://www.nytimes.com/2010/04/30/us/politics/30court.html?pagewanted=1&sq=charlie%20savage&st=cse&scp=16

Obama Says Liberal Courts May Have Overreached
By CHARLIE SAVAGE and SHERYL GAY STOLBERG
Published: April 29, 2010

WASHINGTON — In a seeming rejection of liberal orthodoxy, President Obama has spoken disparagingly about liberal victories before the Supreme Court in the 1960s and 1970s — suggesting that justices made the "error" of overstepping their bounds and trampling on the role of elected officials.

Mr. Obama made his remarks Wednesday night against a backdrop of recent Supreme Court rulings in which conservative justices have struck down laws favored by liberals, most notably a January ruling that nullified restrictions on corporate spending to influence elections.

"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," Mr. Obama said.

"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."

He added, "The concept of judicial restraint cuts both ways."

Mr. Obama's comments, which came as he prepares to make a Supreme Court nomination, amounted to the most sympathetic statement by a sitting Democratic president about the conservative view that the Warren and Burger courts — which expanded criminal defendant rights, required busing to desegregate schools and declared a right to abortion — were dominated by "liberal judicial activists" whose rulings were dubious.

Still, Mr. Obama, who formerly taught constitutional law, did not cite any specific decisions. He has long been a supporter of abortion rights, and repeatedly defended the court's interventionist stance during the civil rights movement because minorities were cut out of the political process, even while saying that such a role would be inappropriate today.

Mr. Obama made his remarks in an impromptu conversation with reporters on a flight to Washington from the Midwest. They were in response to a question about whether concerns about "conservative judicial activism" would play a role in the court nomination.

Mr. Obama has criticized recent conservative Supreme Court rulings before — including the campaign-finance ruling, Citizens United, in his State of the Union address last January. But his remarks went notably further by drawing an equivalence to rulings a generation ago that have been widely celebrated by liberals as historic achievements.

That troubled some liberals, including Wade Henderson of the Leadership Conference on Civil and Human Rights. He agreed with Mr. Obama's definition of "judicial activism," but said he had "a concern about his effort to establish a moral equivalency between the Warren court and the Roberts court."

And the president of the liberal Alliance for Justice, Nan Aron, argued that the Warren and Burger courts had helped make progress on economic and social fronts for people who lacked political power, while the Roberts court is "tilted in favor of those who already have power and influence."

By pegging his critique to the 1960s and 1970s, Mr. Obama stayed away from the most famous liberal Supreme Court ruling, the 1954 Brown v. Board of Education decision striking down school segregation. Still, his statement seemed to call into question subsequent liberal legal victories.

Such rulings gave indigent criminal suspects a right to free lawyers, required police to inform them of their rights, and expanded the kinds of evidence that prosecutors could not use. Aside from decisions on abortion and school busing, rulings required electoral districts to contain equal populations, suspended the death penalty, and banned employment practices that had a disparate impact on different racial groups.

Several conservatives said they welcomed an acknowledgment by a Democratic president that the courts led by Chief Justices Earl Warren and Warren Burger had sometimes overstepped their role.

But they also suggested that his arguments might be a strategic move to de-legitimize lawsuits challenging his domestic policy agenda.

John McGinnis, a conservative law professor at Northwestern University, said, "His party is in control, so of course he wants deference" to legislation enacted by Congress in the current era.

The White House declined to identify rulings that Mr. Obama believes relied on judicial activism. It also argued that his recent remarks were consistent with his history of separating himself from liberals in the Warren court mold. In his book, "The Audacity of Hope," for example, Mr. Obama suggested that "in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy."

Indeed, Walter Dellinger, a Clinton administration lawyer, said in a recent interview that Mr. Obama was likely to seek a nominee who would foster a "culture of restraint" on the court.

"He may be more concerned about avoiding a court that would strike down progressive legislation than he is with achieving a court that will enforce its constitutional views on the other branches," Mr. Dellinger said.

Marge Baker, of the liberal People for the American Way, said liberals were confident they would be able to use the Citizens United ruling to turn conservatives' rhetoric against them.

"Republicans are going to talk about 'legislating from the bench,' and Democrats will laugh them out of the hearing room, because it doesn't mean anything after Citizens United," she said.

Still, several conservatives questioned Mr. Obama's premise that "judicial activism" means striking down the work of elected branches and "restraint" means upholding it. They argued that conservatives are instead talking about judges ruling based on politics rather than law.

David McIntosh, a co-founder of the conservative Federalist Society, said he suspected that Mr. Obama just meant he wanted the court "to uphold the health care bill" without revisiting any of its earlier liberal rulings.

Senator Orrin G. Hatch, Republican of Utah, was also skeptical. "We'll see if he means it," he said, "by the type of justice he appoints." 

[Neil]

Interesting.  I just gained a bit of respect for the guy.