Dems and SCOTUS politics

William Jacobsen of Legal Insurrection:

So why the anger and fury [over Citizens United and over Alito at the SOTU]?

Let me suggest it has something to do with likelihood that Justice Stevens will be retiring at the end of this term. Democrats are attempting to ... pressure Obama to pick an activist liberal justice to replace Stevens, and [Dems are attempting] to justify confirmation.

The argument will go that since Alito and Roberts are activist on the right, there must be an activist on the left appointed as a counterbalance.

There is method to Democrats' madness in attacking the Citizens United decision and in demonizing Alito and Roberts. But it's still madness.

An outstanding take by Jacobsen. A note: Dems don't have to pressure Barack to pick a liberal justice: Barack is enthusiastically on board with that goal - which is why he attacked Citizens United in the first place.

This also explains why Schumer leaped to microphones and excoriated Citizens United as if it were Dred Scott squared. It's likely that Schumer, well in advance of Citizens United, had been thinking ahead: had been searching for strategy and tactics to aid the nomination and confirmation of a liberal SCOTUS justice; had been searching for a SCOTUS decision(s) which could be demagogued as extreme.

Are Dems way better at SCOTUS politics than Repubs? I do think, definitely, Dems are way more desperate about SCOTUS politics than Repubs. Repubs don't use the judiciary to implement agenda; Dems do. When you are more desperate, you think about things more. You strategize as you lay in bed at night. You tend to be more successful than persons who are less desperate. Sun Tzu:

The general who wins the battle makes many calculations in his temple before the battle is fought. The general who loses makes but few calculations beforehand.

Added rant:

This entire Citizen's United/Samuel Alito brouhaha exemplifies leftist hysteria.

Citizens United doesn't hurt the left. Corporations give almost exactly equal contributions to both left and right. On the other hand: unions give 97% of contributions to the left. Most persons on the left understand this. Many left side "complaints" are actually political posturing for purpose of positioning Dems as virtuous and Repubs as unvirtuous.

Alito
Fer cryin out loud: Alito just reacted, out his own personal sense of justice, at the SCOTUS decision being blatantly mischaracterized. Do the persons criticizing Alito have no familiarity with typical human reactions? Alito takes pride in his work, studied and worked hard on Citizens United, then had to sit and watch his work be lied about. Humans are human.

The Anchoress:

Obama is the President of the United States, and he had the pulpit, the microphone, the cameras and the attention of the whole chamber. Alito was one robed judge among 7, barely noticeable in the crowd. The president’s remarks were premeditated. The justice’s muttering was reflexive. One act meant to be both disrespectful and elicit a partisan response, the other was probably not even voiced at all and was meant to satisfy the justice’s own sense of, well, justice.

The Anchoress receives email saying: Bush did it too! She responds:

While we’re at it, I wonder when the left is going to realize that validating the actions of President Obama by bringing up the actions or near-actions of a president [GWB] whose every move they despised does not really help them in their defense.
[...]
It is a crazy way to live -saying what your guy is doing is okay, because the guy you thought was an evil moron did it first – it is cognitive dissonance to the nth degree. And when the argument is used in this case, citing one president’s broad statement against another president’s focused and narrow admonishment, well…it doesn’t work at all.

And, finally, Glenn Greenwald writes dreck; obscures truth when it suits him. His Alito article is tiresome manure. He calls Alito a "partisan sideshow"? Bull. Again, notice that "partisan" is exactly part of the political message Schumer and Obama are trying to send.

Ann Althouse fisks Greenwald:

Alito's response didn't signify political disagreement. It was simply self-defense — a defense of the Court. It meant: We decide cases according to the law. That is apolitical.
[...]
Shaking one's head and mouthing 2 or 3 words is "flamboyant"? Alito was sitting in his seat and he evinced a subtle reaction to a severe political attack. That doesn't make what he did "highly politicized." If anyone was "highly politicized," it was Obama. Alito's response was more of a reflex, and it was, I would assume, grounded in a belief that the Court does what it is supposed to do — decide cases according to the law.

As to Greenwald's convenient deceitfulness, Althouse finds a examples:

While Presidents do not commonly criticize the Court in the SOTU address, it is far from unprecedented either.

[Greenwald's] link goes to Tony Mauro at The Legal Times, who says that this kind of talk is "almost unprecedented." "Almost unprecedented" = "far from unprecedented"? Come on, Glenn. Your sleaziness is showing.
[...]

Yale Law Professor Jack Balkin documents that roughly 25% of Franklin Roosevelt's 1937 State of the Union address was devoted to criticizing the Supreme Court and various rulings which struck down his domestic legislation.

Roosevelt's attack on the Court — quoted by Balkin — was, at the most severe point:

"We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good."

Think about how much more respectful that was toward the Court than the blow that made Samuel Alito flinch last night.

Greenwald concludes:

Whatever one thinks of the one paragraph of Obama's address devoted to the Citizens United ruling, it was not "unprecedented."

Who is he quoting there? Balkin doesn't say "unprecedented." Is it Mauro's "almost unprecedented"? For all his annoying verbiage, Greenwald can't get anywhere in this effort to show that Obama was just fine and Alito did something outrageous. Pathetic!

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