April 5, 2012

Stripping the political rhetoric out of Obama's preemptive attack on a Supreme Court that would strike down the ACA...

... Attorney General Eric Holder files the 3-page, single-spaced letter demanded by the 5th Circuit explaining the Administrations actual position on the judicial review of federal statutes.

The letter — predictably — presents the most ordinary and elementary propositions of constitutional law going back to Marbury v. Madison.

ADDED: Instapundit says " It’s all pretty unexceptional except for the final sentence." Ha ha. The last sentence is the claim that "The President’s remarks were fully consistent with the principles described herein."

See, I think this is a wonderful opportunity to compare political speech about the courts to the speech by politicians to the courts. If you get used to these different styles — as I am, having read this stuff for decades — you can translate back and forth. Speak political rhetoric and I can turn it into a version that is fit for judicial consumption. Show me the way you're talking to the judges and I can whip it into demagoguing-the-public form. And then there's the meta level, where Instapundit is, where you juxtapose them and leverage new critique.

Say I, from meta meta land.

25 comments:

eddie willers said...

I heard Rush refer to Holder as "Eric the Red".

I chuckled.

Michael K said...

The letter is disingenuous in that it adds that these principles are the same as those Obama stated Monday. It's also not 3 pages. The 5th Circuit should send it back.

Aridog said...

Nifty weasel words: “particular deference”

The "yeah, but ..." argument is alive and well today.

Matthew said...

second star to the left and straight on 'til evening?

Seven Machos said...

The letter is disingenuous

Court is a disingenuous place. That's because you are in court. You have to ask yourself, why are you in civil court? Why are you asking the State to solve a problem you couldn't solve privately, reasonably. Well, 999 times out of 1000, it's because the parties to the case were some potent combination of unreasonable, fraudulent, not fully communicative, unwilling to compromise, or engaged in general assholery. This isn't even taking into account all the factors of reality that can mess things up.

Thus, the parties hire lawyers who have the job of putting the best argument forward to justify one side's awfulness. This cannot be done without some degree of disingenuity.

ricpic said...

The president, being an excitable fellow, must have meant ordinary when he said extraordinary. Also known as the Tribe defense.

Original Mike said...

"The 5th Circuit should send it back."

Yeah, it's only 2-1/2 pages (Which I'm sure was on purpose. Lawyers can fill 3 pages in their sleep.)

Original Mike said...

"second star to the left and straight on 'til evening?"

I think that's straight on 'til morning.

ErnieG said...

I checked the upper right corner of the first page, and looked in vain for a grade in red pencil. Aren't they doing that any more?

dbp said...

""The President’s remarks were fully consistent with the principles described herein.""

I would say, "shockingly dishonest", but really, who is surprised anymore?

Alex said...

I still find it shocking that the judge used the term "Obamacare" in his directive to the DOJ. That's stepping completely into the political arena right there. Not good for the cause of electing Republican presidents.

Matthew said...

"I still find it shocking that the judge used the term "Obamacare" in his directive to the DOJ."

-- Isn't that how Obama is referring to it now? I saw at least one place saying the Obama campaign was selling t-shirts and bumper stickers with I <3 Obamacare or something similar.

Alex said...

-- Isn't that how Obama is referring to it now? I saw at least one place saying the Obama campaign was selling t-shirts and bumper stickers with I <3 Obamacare or something similar.,

Regardless if that's true, a judge has no business engaging in politics.

bagoh20 said...

"Thus, the parties hire lawyers who have the job of putting the best argument forward to justify one side's awfulness. This cannot be done without some degree of disingenuity."

I think I would prefer dueling - it's less painful and highly genuine. And no appeals.

Could make a damned good reality show ta boot. 20 minutes of trash talk and technical expertise about the weaponry and relative skills, followed by a resolution that would keep the viewers from clicking that remote.

Matthew said...

So, like Judge Judy mixed with Celebrity Boxing, with just a hint of Myth Busters?

I... I can see the appeal.

Original Mike said...

Celebrity Death Match.

edutcher said...

The equivalent of "Why I left my arithmetic homework where the dog could eat it".

He's caught and he has to be deferential.

Too bad he couldn't send a coupla da boyz from Cook County to straighten hizzoner out, but it is Texas, after all, and them folks ain't dressed without accessories by Mr Samuel of Hartford.

And, yes, the judge should throw it back in Holder's face.

William said...

A lot of Republicans, with some success, ran against the Warren Court. I think Obama is willing to learn from history.....That said, I would say that Repubicans gnashed their teeth at the Warren Court. Roosevelt was willing to bite down on the Supreme Court, and I bet Obama isn't just baring his teeth.

edutcher said...

He doesn't seem to understand American history. Running against the Warren Court didn't do the Republicans that much good.

Packing the Court was a disaster for FDR and put a lot of the initiatives that were intended to put us in a better situation regarding the approach of WWII in jeopardy because he took a beating in the '38 elections.

John Fund has a column called, "President Petulant", and I think this is where we are now. GodZero doesn't like being told, "No", and I think we're going to see more of this behavior.

WV "doiti" Not clean in Brooklyn.

Alex said...

Judicial Procedures Reform Bill of 1937

A political fight which began as a conflict between the President and the Supreme Court turned into a battle between Roosevelt and the recalcitrant members of his own party in the Congress.[11] The political consequences were wide-reaching, extending beyond the narrow question of judicial reform to implicate the political future of the New Deal itself. Not only was bipartisan support for Roosevelt's agenda largely dissipated by the struggle, the overall loss of political capital in the arena of public opinion was also significant.[11]

It didn't end well. WW2 saved FDR's hide. Obama is not so lucky.

Roger J. said...

Agree with those who said FDRs court packing scheme vitiated his reform agenda

raf said...

WW2 saved FDR's hide. Obama is not so lucky.

We don't know that yet. We can only hope he will not be that "lucky." There is still Iran, Syria, etc.

walter said...

Depends on the precedents regarding the definition of precedent ;)


Considering his questionable choices for lifetime SCOTUS appointments, he shouldn't draw attention to the unelected nature of the court.

And given the close vote, emerging data on the problems with ACA and its unpopularity, shouldn't invite consideration of its "benefits".

Carnifex said...

Mealy mouthed politician uses mealy mouthed lawyer to appease someone, somewhere, I guess. Waste of time all around.

GT said...

That letter was a giant F-you to the Fifth Circuit panel that made the order. As noted elsewhere, it failed to meet the length requirement, and it did so by avoiding the main point. Instead, Holder merely asserts, without any reasoning at all, that Obama's statements were consistent with the principles established by prior cases. Getting that explanation was the whole point of the order!

The panel will not be happy with that letter at all, but they risk making themselves look bad by pointing out its deficiencies. It will be interesting to see the opinion that ultimately emerges.