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 Obama Misrepresents the Citizens United Decision [Shannen Coffin] 
 
 The Supreme Court is not — and certainly should not — be above criticism. President Bush made it a point not to criticize the Court’s detainee decisions in Hamdan and Rasul — and probably missed a political opportunity. But he apparently considered it unpresidential to attack Court rulings. 
 
 
 
 By contrast, President Obama displayed an utter lack of tact in his criticism of the Court’s decision in Citizens United. Obama preened for political applause while members of the Court had to sit stoically on their hands. That Justice Alito betrayed his feelings in a minor way is understandable — and not simply because he’s from New Jersey, as my South Jersey wife said. In his preening, Obama flatly misrepresented the ruling. Citizens United is a 57-page opinion that most Americans wouldn’t have a good reason to read – and, quite frankly, I wouldn’t blame them for not reading it. Obama understands that most Americans are susceptible to misleading comments about the decision. In claiming that the Court had opened the floodgates to foreign corporations’ spending without limit in our elections, he sought to take political advantage of that susceptibility. Brad Smith, who has forgotten more about campaign-finance law than I’ll ever know, explained the applicable statutes in his post last night. 
 
 
 
 But you needn’t take Brad’s word for it. The Court itself made clear that its opinion did not address the question of whether the government can regulate improper foreign influence over our electoral process. Writing for the majority, Justice Kennedy expressly stated: “We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process.” In support of that carve-out, the Court acknowledged the statute Brad discussed, 2 U.S.C. section 441e, which bans contributions and expenditures from foreign nationals. So Obama’s attack was a blatant misrepresentation of the holding of the case. And given that his top White House lawyer is a seasoned campaign-finance attorney, it is hard to believe that it was not an intentional misrepresentation. 
 
 
 
 While I’m on the subject of the speech, Mark Steyn hilariously suggested that its empty rhetorical flourishes were a bit like the lyrics to Sinatra’s swaggering “That’s Life.” The difference, though, is you could buy the swagger from Sinatra. With this president, it comes across as stale and ultimately empty dramatic license. 01/28 10:06 AM Share 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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 ||||| Yesterday I wrote about what seemed to be President Obama's fairly stunning disparagement of the Warren and Burger Courts (expressed on the eve of naming Justice Stevens' replacement), as he echoed the classic, decades-old, right-wing claim that those courts were guilty of the "error" of "judicial activism." As I noted in an update, numerous people, in comments and via email, objected that I had misinterpreted Obama's remarks, that he was merely noting the hypocrisy of the Right but not himself criticizing those courts. As it turns out, The New York Times' Charlie Savage and Sheryl Gay Stolberg understood his remarks exactly as I did, as did the experts on both sides of the spectrum they interviewed, and the White House itself seemed to confirm that this is exactly what Obama intended to convey: 
 
 Obama Says Liberal Courts May Have Overreached 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’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. . . . 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. 
 
 I bet they did welcome it. Now, there's nothing sacrosanct about those courts, and there's nothing per se wrong with criticizing them. But given that the defining rulings of those decades have long formed the bedrock of the progressive understanding of the Constitution and the judiciary, that the dominant Justices of that era (Brennan, Marshall, Douglas, Black) are the iconic liberal judges of the 20th century, and that those decades produced the most vital safeguards for core Constitutional guarantees and critical limits on executive power, Obama -- as I said yesterday -- should at least specify which decisions he finds "erroneous" and illegitimate. But the imperial decree has been issued and that's apparently all you need to know: 
 
 The White House declined to identify rulings that Mr. Obama believes relied on judicial activism. 
 
 The absolute dumbest political platitude in the vast canon of right-wing idiocies has long been the premise that courts act improperly -- are engaged in "judicial activism" -- whenever they declare a democratically enacted law invalid on the ground that it is unconstitutional. That's one of the central functions of the courts, a linchpin of how our Constitutional Republic operates. We're not a pure democracy precisely because there are limits on what democratic majorities are permitted to do, and those limits are set forth in the Constitution, which courts have the responsibility to interpret and apply. When judges strike down laws because they violate Constitutional guarantees, that's not a subversion of our political system; it's a vindication, a crucial safeguarding of it. 
 
 But now, here is Obama giving credence to that idiocy with his sweeping, unspecified condemnation of the Warren and Burger Courts as "judicial activists." If, as Obama argues, some (or many) of the decisions of that era are "errors" of activist overreaching, wouldn't the current Court be justified in reversing them? And won't Republican Senators be justified in demanding that Obama refrain from nominating to the Court anyone whose records seems compatible with the defining judicial approach of those courts (since, after all, even Obama acknowledges they were in "error")? Why is Barack Obama walking around echoing the right-wing/Limbaughian view that the Supreme Court's decisions of the 1960s and 1970s were illegitimate, anti-democratic power grabs? 
 
 It's one thing to argue, as Obama has previously, that it sometimes makes more sense to accomplish political goals democratically rather than through the courts, and that liberals in the past have been too reliant on judicial victories in lieu of persuasion and organizing. As a general strategic proposition, I don't disagree with that view. But that has nothing to do with the proper role of judges, which is to strike down any and all laws brought before them which violate the Constitution. That core principle is the one Obama is disparaging. 
 
 In their NYT article this morning, Savage and Stolberg suggest that Obama may be motivated by a desire to protect progressive legislation from being struck down by the Roberts Court (as they did in Citizens United): 
 
 John McGinnis, a conservative law professor at Northwestern University, said, "[Obama's] party is in control, so of course he wants deference" to legislation enacted by Congress in the current era. 
 
 That's a fair enough objective, but demanding judicial deference to democratically elected laws is incredibly short-sighted and destructive. As Bush critics tried (unsuccessfully) to explain to the Right throughout the last decade, the party in power doesn't stay in power forever. Principles that you endorse and powers you vest when your party is in control don't disappear once the other party takes control, as it inevitably will. The changes one party makes to our political system endure once the other party takes control. 
 
 Publicly discrediting the core judicial function may serve Obama's short-term political goals by deterring the Roberts Court from striking down laws enacted by the current Congress or actions he takes as President. It may win him a day's worth of plaudits from right-wing legal ideologues. But it also further entrenches the right-wing myth that judges act illegitimately when they strike down democratically elected statutes or "interfere" in executive actions. That won't apply only when it comes time to examine Obama's domestic legislation, but also when it comes time to adjudicate the next Military Commissions Act, or the next oppressive anti-gay referenda, or future efforts to restrict Internet content, or twisted (but democratically-enacted) abortion laws, or government programs to spy on Americans without warrants, or the latest police state expansion of the type just enacted in Arizona, or whatever else the next GOP majority is able to implement. The basis for constitutionally challenging such acts is found in the jurisprudence that Obama just demeaned. 
 
 The prime attitude of the Bush administration towards courts was that they had no business interfering with whatever the Executive branch and the GOP Congress decided to do. It's unsurprising that Obama is now echoing that same perspective, but that doesn't mean it's harmless. There are ongoing, very live disputes over the proper role of the courts, and Obama, intentionally or otherwise, just bolstered the right-wing arguments in those debates by embracing long-standing cartoons of the Warren and Burger Courts. 
 
 UPDATE : With regard to the other topic here from yesterday -- the Obama DOJ's issuance of a supboena to Jim Risen -- see this Washington Post article headlined "After reporter's subpoena, critics call Obama's leak-plugging efforts Bush-like." The article, by Howard Kurtz, explains that the subpoena "has convinced some press advocates that President Obama's team is pursuing leaks with the same fervor as the Bush administration" and includes this: 
 
 "The message they are sending to everyone is, 'You leak to the media, we will get you,' " said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. In the wake of the Bush administration's aggressive stance toward the press, she said, "as far as I can tell there is absolutely no difference, and the Obama administration seems to be paying more attention to it. This is going to get nasty." 
 
 It was once the case, not all that long ago, that those who pointed out the extreme similarities between the Obama and Bush administrations in these areas were accused of being hysterical, impetuous purists. It's now the case that those who do so are guilty of nothing more than stating the obvious. 
 
 UPDATE II : For all you libertarians appearing in the comment section to defend Obama's comments because you don't like Roe and Brown v. The Bd. of Education: I seriously doubt that those are the decisions he had in mind when criticizing "judicial activism." Obama has long self-identified as pro-choice and a defender of Roe, and I would be quite astonished if he had Brown and its progeny in mind when criticizing the Court. Obama's failure and subsequent refusal to specify the decisions he thinks are illegitimate make it impossible to know for certain, but it's unlikely in the extreme that he intended to question the validity of reproductive right and desegregation rulings. 
 
 That said, the fact that people who hate Roe and Brown are identifying so strongly with Obama's views about the Supreme Court illustrate the real point here. 
 
 UPDATE III : Jesselyn Radack, the whistle-blower in the Bush DOJ, today recalls Obama's transition position on whistle-blowers: 
 
 Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. 
 
 Who knew that the way to "protect" and "encourage" these "courageous patriots" would be by issuing subpoenas to uncover their identity and then criminally prosecuting them? 
 
 Meanwhile, Greg Sargent argues that these attacks on the Warren and Burger courts are typical Obama. ||||| As you've no doubt heard by now, in an extraordinary escalation of tension between President Barack Obama and the sitting justices of the Supreme Court during last night's State of the Union address, Justice Samuel Alito gave us this year's "Joe Wilson moment" by shaking his head and mouthing "Not true..." in response to the following statement by the President: 
 
 With all due deference to separation of powers, last week the Supreme Court reversed a century of law to open the floodgates for special interests -- including foreign corporations -- to spend without limit in our elections. Well I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. 
 
 Conservatives and progressives may argue this morning about whether President Obama should have criticized the Court and about the severity of Justice Alito's breach of protocol, but Justice Alito faces a bigger problem: Obama's comment is true. 
 
 In fact, Obama's carefully-phrased comment to the justices highlights two critical aspects of the majority's decision in Citizens United v. FEC, both of which constitute dangerous and revolutionary shifts in long-settled law: 
 
 The Court ruled that the First Amendment makes no distinction among speakers -- that the identity of a speaker makes no difference for purposes of government regulation of speech. As Justice Stevens pointed out in his dissenting opinion, this logic leads to some remarkable conclusions: "Such an assumption would have accorded the propaganda broadcasts to our troops by 'Tokyo Rose' during World War II the same protection as speech by Allied commanders." Stevens also clearly explained that the majority's logic "would appear to afford the same protection to multinational corporations controlled by foreigners as to individual Americans." This is truly an unprecedented reading of the Bill of the Rights that could have consequences that reach even beyond campaign finance law. By eliminating any distinction among speakers, which, as Obama noted, has been recognized for at least a century, the Court hinted that any regulation that distinguishes between corporations and individuals may be problematic -- raising the question of what other rights currently reserved for citizens the Court might soon extend to corporations. As Stevens noted in his dissent, under the majority's logic, "it may be a First Amendment problem that corporations are not permitted to vote, given that voting is, among other things, a form of speech." 
 
 To make matters worse, the Court dramatically redefined the meaning and standard of "corruption," ruling that only the strictest and most direct forms of corruption -- e.g. bribery -- are prohibited, and not, as was previously the standard, any "appearance of undue influence." This critical component of last week's decision redefined the boundaries of what constitutes corruption and made influence by special interests significantly more difficult to prove. More important, the ruling, as Obama precisely indicated and as Senate Judiciary Chairman Patrick Leahy (D-VT) fervently reiterated this morning on the Senate floor, appears to sweep away vital barriers that were keeping foreign special interests, such as Toyota, from manipulating American elections. If all speakers are treated equally under the First Amendment, and the only corruption Congress can prohibit is direct vote-trading for money, then there is no reason why foreign companies with a U.S.-presence couldn't spend endless amounts of money to influence U.S. elections. Under the logic of the Supreme Court's decision, just as Exxon can now spend millions to oppose a candidate who, for example, supports the climate bill, so, too, could Toyota or other foreign companies. 
 
 If Justice Alito wanted to disclaim any of this, or if he thought that the majority's opinion was not as far-reaching as Justice Stevens' powerful dissenting opinion demonstrated, he should have written a concurring opinion. He should have explained how the logic of the Court's opinion doesn't change course on over a century of campaign finance law that seeks to limit corporate influence in elections and showed us that the Court's formalistic approach to the First Amendment and corporations won't lead to foreign corporate spending in U.S. elections. But muttering at the State of the Union clarifies nothing. ||||| This is a rush transcript from "Hannity," January 27, 2010. This copy may not be in its final form and may be updated. 
 
 SEAN HANNITY, HOST: We continue now with our live post-game coverage of the president's first State of the Union address. Joining me now with reaction is the former governor of Alaska, Fox News contributor Governor Palin. Governor how are you? 
 
 SARAH PALIN, FOX NEWS CONTRIBUTOR: I'm doing great, Sean thanks for letting me be here. 
 
 HANNITY: We appreciate you being here. We are glad to have you on board. First of all your initial reaction. 
 
 PALIN: I think that there was a lot of lecturing going on tonight versus inspiring the American people and independent politicians who were sitting there in the audience waiting to hear some acknowledgement that there has been a disconnect between the White House and the people who are expecting more from our government. More in terms of empowerment of the people not relying on government to meet all of our challenges but empowering our families, our small businesses to fix the problems that we are facing today. 
 
 • Watch Sean's interview 
 
 HANNITY: Governor my take it was not as presidential as I would expect it to be. Let me explain by that. I thought it was extremely partisan. I thought he regurgitated all the old lines of old speeches. Double down on cap-and-tax, and on tax increases, more stimulus spending, a freeze but the freeze doesn't start for another year. What was your reaction to the tone specifically of the speech? 
 
 PALIN: Well again, not as inspiring as perhaps we're used to President Obama coming across as. But I think that's an indication still of that disconnect between the people and the White House. He not understanding that no we don't want to just chill a little bit and cool a little bit on his health care plan we want the thing killed because it is government take over of about 1/6 of our economy. We don't want to see that go forward so with an issue like that still with that disconnect. 
 
 I think that there was no way for him to come across as inspiring when he's still proposing those top down big government solutions to the challenges that we're facing. When the people want empowerment for our businesses, our families. 
 
 HANNITY: You know Governor I took some notes as the president was speaking. He talked about for example the influence, the outside influence of lobbyists. But he hired a bunch of them. He talked about quote to do our work openly. He promised C-SPAN for example, it was all behind closed doors. He said for example, we are going to eliminate earmarks. He signed all the earmarks. He talked about balancing budgets but he raised the debt, nearly quadrupled it. Is he out of touch in some way with his own policies? 
 
 PALIN: I believe so. And I think a lot of the fact checkers tonight are going to be quite busy as they run down the content of that speech and they are going to call him on some of these claims that he made tonight. For instance you bring up the lobbyist issue he's got at least 11 high powered lobbyist who are part of now his administration, help him make some calls and yet he claimed that lobbyists essentially aren't having a whole lot to do with policy. That's not entirely true. So fact-checkers are going to be busy tonight and tomorrow I think we are going to see a lot of the details come out. 
 
 • What did you think of Obama's speech? 
 
 HANNITY: All right. I want to show Iranian something, there was a moment in the speech tonight Governor where he spoke about campaign finance and the Supreme Court decision. Now we have an isolated view of Justice Alito. And you can watch his lips it is clear to me what he's saying. He's using the words "not true." Let's roll this tape and I want to get your take on this. 
 
 (BEGIN VIDEO CLIP) 
 
 OBAMA: Including foreign corporations to spend without limit in our election. 
 
 SUPREME COURT JUSTICE SAMUEL ALITO: Not true. 
 
 (END VIDEO CLIP) 
 
 HANNITY: Did you see that governor? 
 
 PALIN: I saw it, Sean. I tell you this is why people are disenchanted and are becoming more and more disengaged really from what their government is doing. Because when we see an issue like this, words spoken that may not be true, coming from our president and embarrassing our Supreme Court and not respecting the separation of powers, we have a problem. And that is illustrated there by that justice mouthing those words, not true. 
 
 Now one or the other, is being disingenuous here either our president in what he just claimed or the Supreme Court justice. I think that this is going to be a huge take away moment from the speech tonight. 
 
 HANNITY: I think it is going to be a huge take away moment. What did you think specifically when he brought up the issue of health care Governor? I would love to get your take on that. And more specifically, he almost sounded as if, we the American people, we're sort of out touch, we are not understanding him. He used the phrase it is a complex issue the longer it was debated the more skeptical people became. I take my share of blame for not explaining it to the American people. I'm thinking you explained it again and again and people rejected it. What was your take away? 
 
 PALIN: Bingo, exactly that. Ever since about August more and more Americans have paid more attention to what is in this health care bill and more Americans are becoming more concerned about what we see in there. So it hasn't been a matter of he not being able to explain his policy with government take over and mandation of health care, but Americans understanding what is in there not liking it and sending him that message via the three recent Republican sweeps in Virginia, New Jersey, Scott Brown's election too and the tea party movements, the town halls events, people sending that message to the president mainly health care being the focus on this, he not understanding that we don't want to see government takeover of 1/6 of our economy. 
 
 HANNITY: Let me ask you, I have to get in one national security question. He did not spend a lot of time on the speech when I printed out my version it was only 14 pages and only about 1, 1/2 pages max was used on the issue of national security. But he said at one time for America must always stand on the side of freedom and human dignity, Governor. I'm thinking except maybe in Iran when people are risking their lives and they are on the streets and Iran thumbs their nose at America. Did you have the same reaction or a different reaction? 
 
 PALIN: Only 10 percent of the speech being dedicated to the War on Terror and where we are with national security issues is quite concerning. Yes, Iran was a perfect place for him to start to press that reset button, if you will and say OK we are going to stand up for those who are craving democracy and freedom and we are going to speak out, the United States of America is going to speak out in support of those who desire this freedom. If he doesn't fulfill this as he just claimed tonight, then more and more people are going to say look Mr. President we cannot trust you, you have already broken so many promises don't go back on your word on this one. 
 
 HANNITY: All right. Governor we always appreciate having you. Thanks for being with us. 
 
 PALIN: Thank you. 
 
 — Watch "Hannity" weeknights at 9 p.m. ET! 
 
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– Justice Samuel Alito's critical reaction during last night's State of the Union speech is still making waves: Shannen Coffin, National Review: "That Justice Alito betrayed his feelings in a minor way is understandable. ... In his preening, Obama flatly misrepresented the ruling" and showed an "utter lack of tact." Glenn Greenwald, Salon: The judge made "a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the court. It has nothing to do with etiquette. ... (The court) must remain apolitical, separate, and detached from partisan wars." Sarah Palin, Fox News: Obama is "embarrassing our Supreme Court and not respecting the separation of powers. ... I think that this is going to be a huge take-away moment." Doug Kendall, Huffington Post: If Alito feels this way, he should have written a concurring opinion and explained how the ruling "doesn't change course on over a century of campaign finance law ... and showed us that the court's formalistic approach to the First Amendment and corporations won't lead to foreign corporate spending in US elections. But muttering at the State of the Union clarifies nothing."