The Latest in Judicial Activism

We all have a tendency to assume that people we don't like have sinister motives underlying their words and actions, and people we do like have good motives. When you're trying to determine what a politician meant when he or she said something that struck you as potentially objectionable, your overall view of them is going to have a lot to do with what conclusion you come to.

I bring this up as context for some criticism Barack Obama is getting over a comment he made discussing the idea of "judicial activism." Let's start with what he actually said:

THE PRESIDENT: Well, I mean, here’s what I will say. It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically. And in the ‘60s and ‘70s, the feeling was, is that liberals were guilty of that kind of approach.

What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error. And I think rather than a notion of judicial restraint we should apply both to liberals and conservative jurists, what you’re seeing is arguments about original intent and other legal theories that end up giving judges an awful lot of power; in fact, sometimes more power than duly-elected representatives.

Salon's Glenn Greenwald got pretty mad. "I'd really like to know what Obama means specifically when he adopts the Right's view by condemning those courts as being guilty of 'erroneous' judicial activism," he wrote. But come on now. Look back at what Obama said. Did he really "condemn" the courts of the 60's and 70's? You may not like Obama's style of rhetorical outreach, but it should be awfully familiar by now. He'll say, "This is what my friends on the other side of the aisle believe, but here's why that view might not be correct." If you're willing to examine his remarks fairly, you can't say that when he says, "the feeling was, is that liberals were guilty of that kind of approach," that he's saying he believes that liberals were guilty of that kind of approach. All he's saying is that "the feeling was" that they were -- in other words, lots of people thought they were. Which is true.

Here's what happened next: The New York Times published an absurdly overblown piece, taking the "the feeling was" sentence and running with it. "In a seeming rejection of liberal orthodoxy," they wrote, "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." "Spoken disparagingly about liberal victories"? Really? Because he said "the feeling was" that liberals engaged in judicial activism?

Greenwald followed up with a second post, decrying Obama's "sweeping, unspecified condemnation of the Warren and Burger Courts as 'judicial activists.'" Anyone who reads him knows that Glenn has criticized the administration for a lot of different legal and judicial issues. And with good reason. But this particular criticism is kind of ridiculous.

Remember, this is all about that one sentence. Let's read it again: "And in the ‘60s and ‘70s, the feeling was, is that liberals were guilty of that kind of approach." Does it really warrant all this outrage? It would be great if a reporter asked Obama a follow-up about this. And if he makes it clear that he actually thinks the liberal victories of the '60s and '70s constituted "judicial activism," I'll be the first to condemn him. But not based on his utterly mundane description of what "the feeling was."

UPDATE: In the comments section, Glenn Greenwald replies to this post, and I reply to his reply. Go read it!

-- Paul Waldman

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