By Ross Kaminsky on April 4, 2012
On Tuesday afternoon, in a stunning rebuke of President Obama, Judge Jerry Smith of the Fifth Circuit Court of Appeals decided he had heard enough of the president’s incessant hyper-partisan rhetoric challenging the independence of the federal judiciary. Judge Smith, who was appointed to the court by Ronald Reagan, “referring to statements by the president in the past few days to the effect… that it is somehow inappropriate for what he termed ‘unelected judges’ to strike acts of Congress,” said that Obama’s comments “have troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority…. And that’s not a small matter.”
He then ordered the Justice Department to respond to the court by noon on Thursday with a letter (minimum three pages, single-spaced) explaining with specificity the DOJ’s position on “judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation.” (Audio of the relevant portion of the hearing can be found here [2.7MB], and audio of the full hearing here [29MB].)
My grandmother — and yours — reminded us that if we don’t have anything nice to say, don’t say anything at all. My basketball coach — and yours — reminded us not to give the opposition extra motivation by predicting victory before a game, with the importance of that advice being proportional to the importance of the game.
Barack Obama, already the most overexposed president in American history, could learn from a political version of those bits of wisdom: if you don’t have anything to say that can help you, at least don’t say something that can hurt you, particularly before one of the most important events of your presidency — in this case the Supreme Court’s decision on Obamacare.
The President has made a habit of offering his opinion where it is not only unneeded but also exposes the president to unnecessary political risk.
One might have thought that Obama, our nation’s first or second black president, depending on how you categorize Bill Clinton, would have learned his lesson about jumping into racially-charged kerfuffles after calling Cambridge, Massachusetts police “stupid” for arresting (black) Harvard professor Henry Louis Gates.
But that didn’t stop him from commenting on the Trayvon Martin situation, saying “If I had a son, he’d look like Trayvon” and calling for some national “soul-searching,” again without having any facts beyond what the rest of the nation had read in the newspaper.
On the other hand, no soul searching or response has been forthcoming from Obama despite repeated letters from the parents of two British students who got lost and wandered into a Sarasota, Florida ghetto, only to be executed by Shawn Tyson, a black teenager who saw an opportunity to rob two “crackers” and shot them when they didn’t have money for him.
According to the UK’s Daily Telegraph, a close friend of the murdered tourists made comments after Tyson was sentenced to life in prison without the possibility of parole: “We would like to publicly express our dissatisfaction at the lack of any public or private message of support or condolence from any American governing body or indeed, President Obama himself. Mr Kouzaris [the father of one of the victims] has written to President Obama on three separate occasions and is yet to even receive the courtesy of a reply. It would perhaps appear that Mr Obama sees no political value in facilitating such a request or that the lives of two British tourists are not worthy of ten minutes of his time.”
This contrast is only possible because Obama volunteered a divisive opinion in the admittedly tragic killing of an unarmed teenage boy.
With Mr. Obama’s advisors probably suggesting he stay out of such racially-tinged controversies, the president’s uncontrollable urge to risk political capital with poorly conceived opinions is funneled elsewhere.
On Monday, the urge caught up with him in a joint press conference with the president of Mexico and the prime minister of Canada in which President Obama said that he was “confident” that the Supreme Court will not overturn his signature piece of legislation — or presumably its keystone individual mandate provision. In fact, he used the word “confident” five times in about two minutes while answering a reporter’s question on the subject — a question that did not include asking the president’s view of the likelihood of any particular Supreme Court decision.
And in a speech on Tuesday (timed, as usual, to focus news cameras on him during a day of important Republican primaries), President Obama reinforced his comments: “I have enormous confidence that in looking at this law, not only is it constitutional but that the Court is going to exercise its jurisprudence carefully.… As a consequence we’re not spending a whole bunch of time planning for contingencies.” He added, “I don’t anticipate the Court striking this down.”
In both speeches, he seemed to be all but daring the Court to fulfill its constitutional responsibilities, suggesting that it would be an overreach of their authority to take the “extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.” (Not that the size of a majority is relevant to determining constitutionality, but perhaps Barack Obama should be reminded that in a House of Representatives with 78-vote Democrat majority, Obamacare passed by seven votes, garnering not a single Republican and losing 34 Democrats.) As reported above, the Fifth Circuit picked up the president’s gauntlet in most dramatic fashion.