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.
What is Obama trying to accomplish by offering opinions from on
high on situations about which he does not have all the facts and
cannot know the eventual outcome? Who is he trying to influence,
and does he think he is succeeding?
In the cases of Professor Gates and Trayvon Martin, there are a
few possibilities: He could be trying to influence the behavior of
state or local law enforcement agencies, which would be utterly
inappropriate for anyone with as little information as he has, and
infinitely more inappropriate for the president of the United
States.
He could be trying to energize his political base, including
black voters, hoping to increase their enthusiasm which has been
waning along with all of his other supporters’ since 2008. Or he
could be trying to get the media to focus on the distraction caused
by his comments rather than the more serious issues going on in the
world which, if people were paying attention, would damage his
reelection prospects. The truth is probably a combination of all of
the above.
When commenting about the Supreme Court, however, one has to
wonder whether the president truly thinks he can influence their
decision by trying the case in the newspapers and the blogosphere.
Lecturing local cops from the bully pulpit is one thing. Lecturing
the nation’s highest court is something else. As Jim
Antle points out, Obama can’t actually believe that the Supreme
Court’s overturning part or all of Obamacare would be
“unprecedented [and] extraordinary,” as he stated on Monday.
That said, Obama’s history, including
lying to Congress — in a State of the Union address with the
Supreme Court Justices present — about the impact of the Court’s
Citizens United decision, shows that neither truth nor
common sense nor dignity will stay his hyper-partisan rhetoric from
the swift completion of its appointed rounds.
If the president does believe he might sway Justice Anthony
Kennedy or Chief Justice John Roberts (the only two who seem
vaguely swayable), what would that mean about a man who was a
lecturer in constitutional law at the University of Chicago? It
would mean that he believes the Court is politicized to the point
of being functionally corrupt; no doubt his acolytes do believe
that and will be utterly convinced of it after the greatest federal
overreach since FDR is turned aside.
If he doesn’t believe the Court can be swayed by his words, then
we return to his trying to motivate his base while distracting
voters. Again, both are almost certainly true, given low approval
ratings, $4 gasoline, and open-microphone “flexibility.”
Obama’s comments are ill-advised, politically speaking. They add
political risk where he already has more than enough. True, if the
Supreme Court were to uphold Obamacare, he looks slightly more
prescient by having predicted as much. But that would be like
winning a million dollar slot machine jackpot and learning the
price was actually one hundred dollars more. Not that you’d refuse
the Ben Franklin, but it’s really not what made your day.
On the other hand, by repeatedly predicting that the Supreme
Court will uphold his eponymous law — a law so obviously
unconstitutional that even a majority of Democrats
recognize it as such — a Supreme Court loss will damage more
than it otherwise might.
Again, it is not just grandma’s wisdom that Obama ignores by his
unstoppable offering of divisive opinions; it is the wisdom of
every good sports coach and political strategist: When the outcome
is likely unfavorable, or even just unknown but with high risk,
minimize expectations. Not only does that hurt you less if the
result is bad, but it has the added advantage of keeping your
opponents less motivated than they might otherwise be. Indeed, if I
were a fence-sitting Supreme Court Justice, I might be more likely
to fall off the fence against Obama rather than for him out of
indignation at efforts to be muscled in an international press
conference.
Without his pronouncements of confidence, should the Supreme
Court overturn Obamacare in whole or in part, all Republicans and
many independents will view Barack Obama as a man who watched and
smiled while House and Senate Democrat leadership used every
political maneuver they could conceive of — including bribery of
Senators Ben Nelson (D-NE) and Mary Landrieu (D-LA) — to pass the
biggest federal power grab since the 1930s despite not one of them,
including the president, knowing what was in the bill.
But now that he is so publicly “confident,” if Obama is wrong
about the Court’s June ruling, voters will instead view him as a
man who is all of the above, and whose understanding of
the Constitution is dangerously absent.
That last characteristic is more important than it has been in
many election cycles with the nation’s modest renewal of interest
in our Founding principles (and in the case of the Tea Party
movement, a more than modest renewal).
But it’s not just that Obama will look constitutionally
ignorant. It’s that he will look ignorant of the subject he used to
teach.
Imagine Mitt Romney giving, for no good reason, an opinion on a
business situation where he could not possibly know the outcome,
and then having his opinion turn out to be wrong. The media would
crucify him and question his business bona fides as well as the
wisdom of his having prognosticated — and on the latter they would
be right.
When you claim to be an expert, getting it wrong is much more
damaging than if you are a novice offering an explicitly
little-informed opinion.
This is the unnecessary risk that President Obama is taking by
spouting off about being “confident” that the Supreme Court will
uphold Obamacare, with the risk being reinforced by Vice President
Joe “Big F-ing Deal” Biden making similar
suggestions that the law will not be overturned.
Unless the president believes that he can impact the outcome of
the Supreme Court case with his words — which we all, regardless
of our political leanings, must all hope he cannot do — he is
risking much more than he can gain with his unnecessary and
overconfident opinions. Indeed, the Fifth Circuit’s firm-handed
judicial smackdown, demanding the Department of Justice respond in
48 hours with an explanation of Obama’s view of judicial review,
has turned Obama’s confidence into an immediate political
loser.
The Republicans — so busy shooting automatic weapons in a
circular firing squad — should consider themselves lucky that we
have a president whose ego is too large to allow him to learn from
his own repeated mistakes, or from the wisdom of grandmothers and
coaches throughout the ages.
