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.