If Obama v Alito were a murder trial -UPDATED

Still lots of talk in the blogosphere about the president calling out a co-equal branch of government before the whole nation and then inciting another co-equal branch to jeer against it, and Justice Samuel Alito’s reflexive, and unheard-only-lip-read reaction.

I have followed with great interest the varying opinions, arguments, and thoughtful comments. I was particularly struck by Megan McArdle, though, who wrote:

I’m sorry, I’m having a really hard time getting worked up about Alito’s “breach of protocol”. It’s totally true that justices usually sit there like a stone. On the other hand, president’s don’t usually call out said justices for being too wrapped up in that dumb first amendment–much less call them out with statements that seem to be unequivocally false.

Using the state of the union as an opportunity to call out supreme court justices, who you expect will have to sit there impassively while you rake them over the coals is, well, kind of a jerk move. And I’m pretty sure it’s not exactly traditional presidential protocol. It certainly doesn’t show “all due deference” to the separation of powers, especially when it’s followed by a pledge to pass more of the kinds of laws they’ve just ruled unconstitutional.

I’m calling this one a draw. (H/T Insty)

Because I am a laywoman, perhaps I don’t get how McArdle can end her stinging rebuke with a “draw.”
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.

If we were talking about a murder, instead of a murmer, Alito would be facing a charge, probably, of involuntary manslaughter. Obama, on the other hand: cold-blooded murder in the first degree: weapon, means, motive, deliberation, calculation.

Again, only as a laywoman, it seems to me that our constitutional scholar president, at the very least distorted the ruling before the whole nation. Which either means he is dumb or a demagogue, I don’t know. Some are saying demagogue, but since Ed Morrissey and Gateway Pundit noticed the president kind of making up the constitution as he went along (nothing like counting on Americans to be stupid…or something) maybe he is just not as smart as everyone thought. Or, maybe he is a dumb demagogue, and not a smart one.

I mean, in his SOTU address, Obama also proudly (and rather nastily) claimed that his administration was “once again prosecuting civil rights violations”, excepting those violations against voters who have tried to exercise their constitutional right and duty, only to be intimidated by a guy with a nightstick, whom the president and his justice department refuse to prosecute.

So, maybe President Obama is confused about lots of things in the constitution and in the law. Or maybe he spouts “just words.” Lots and lots of “just words.”

In any case, having watched every SOTU speech since I was ten years old, I agree with McCardle that Obama’s making his remarks about and to the court – made when they were a captive audience unable to address his odd distortion and promise of legislative revenge – was “kind of a jerk thing to do.” I have never trusted the president less.

UPDATE: In the comments section, “Zachriel” writes:

Bush, State of the Union 2004: “Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives.”

I think reasonable, thoughtful people who debate should be able to make distinctions, particularly when they are not exactly fine distinctions. Let us stipulate -as the left has, for several days now, and the right has agreed- that the separate branches of government may speak to each other and about each other. Having so stipulated, it seems to me to be rather a large difference between a president making a very broad remark about a general trend of the court, vs a president citing a specific ruling, distorting that ruling, instructing his party to legislate in a manner that will overturn that ruling and get them on their feet jeering at the court.

Yes. I would say there is a very big difference between what Bush did, and what Obama did.

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 whose every move they despised does not really help them in their defense. I can’t tell you how many emails I’ve had from people on the left who say, “you complain about spending, but Bush spent a lot!” Yes, he did, and most on the right (me included) decried it. But let us not forget that the Democrats wrote the budgets and voted for the spending that Bush signed. Let us not forget, further, that if Bush spent far too much, then Obama’s spending far, far, far more, cannot be justified by saying “Bush did it.”

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.

Little Miss Attila has more.

On a related topic, how far does Pelosi go before she becomes “anti-Democratic”? A must read from Peter Wehner.

And Bookworm watches The Daily Show

About Elizabeth Scalia
  • http://vita-nostra-in-ecclesia.blogspot.com Bender

    If we want to “make this perfectly clear,” it is not merely that Alito privately moved his lips, from the Obama-sycophant perspective, merely having wrongful thoughts is an unforgiveable crime as well.

    And for those who think that Alito and the rest should have sat there and took Obama’s contemptuous crap stone-faced, let me ask this — how is it that the cameras were pointed directly at them when Obama spewed his nonsense?? The networks having a copy of the speech, they obviously were looking to see if the remarks would elicit a reaction.

    Now, “to be perfectly clear,” if you really want to know, if we want to get technical, there is a term for attacking judges (or justices) like that in their presence. It’s called contempt of court. If we really want to play this stupid game, Alito could have very well have stood up and summarily cited him for contempt.

    As for Obama, has there been any time when he has acted presidential? Almost everything he has done has been a “kind of jerk thing to do.”

  • Jennifer

    I agree, but honestly, I can’t fault Alito even a little. He reacted honestly to an untruth told publicly about him and the Court. He did it quietly, without drawing any attention to himself. Not his fault the camera zoomed in. The President acted completely without respect or class, as usual. He and the applauding members of Congress ganged up on the justices like schoolyard bullies. Alito showed restraint and tact. He committed no breach of protocol and I’m glad to know we have a man on the high court with enough chutzpah to confront our Liar-in-Chief.

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  • Brian English

    It did not even look like Sotomayor, who was sitting next to him, heard what he said.

  • http://zachriel.blogspot.com/2005/07/liberal-v-conservative.html Zachriel

    Bush, State of the Union 2004: “Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives.”

    Hmmmm…we should be able to make distinctions, particularly when they are not exactly fine distinctions, shouldn’t we? Let us stipulate -as the left has, for several days now, and the right has agreed- that the separate branches of government may speak to each other and about each other. Having so stipulated, it seems to me to be rather a large difference between a president making a very broad remark about a general trend of the court, vs a president citing a specific ruling, distorting that ruling, instructing his party to legislate in a manner that will overturn that ruling and get them on their feet jeering at the court.

    Yes. I would say there is a very big difference between what Bush did, and what Obama did.

    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 whose every move they despised does not really help them in their defense. I can’t tell you how many emails I’ve had from people on the left who say, “you complain about spending, but Bush spent a lot!” Yes, he did, and I decried it. But let us not forget that the Democrats wrote the budgets and voted for the spending that Bush signed. Let us not forget, further, that if Bush spent far too much, then Obama’s spending far, far, far more, cannot be justified by saying “Bush did it.” 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. Btw, I changed your bold to italics, because this is my sandbox, and I get the bold, in response! :-) -admin]

  • SKay

    He is trying to intimidate the Supreme Court–the Chicago way.

  • http://www.aol.com exhelodrvr

    If this were a murder, Alito would be charged with “thinking about possibly killing someone accidentally”.

  • http://vita-nostra-in-ecclesia.blogspot.com Bender

    “kind of a jerk thing to do”

    Listening to excerpts from his meeting with Republicans today, it sounds like Obama is giving them a big F-you as well. None of this petty scratching with the middle finger today. Today, it is blatant.

  • newton

    It seems that all of the other SC justices were very uncomfortable with Obama as well.

    I would have loved to be the proverbial “fly on the wall” at the Supreme Court chambers the next morning!

  • paul

    Heard you on the radio this week, regarding the Vatican’s urging of clergy to get into blogging. I loved your advice to busy clergymen.
    Wish I could tell you on what station I was listening to…either NPR or a Catholic station.
    Thanks for your excellent work.
    If you referenced this earlier on your site, I am late in catching up on my reading and wanted to register hearing you.

  • Brian English

    “Bush, State of the Union 2004: “Activist judges, however, have begun redefining marriage by court order, without regard for the will of the people and their elected representatives.”

    (1) Bush was not talking about the Supreme Court Justices sitting 15-feet away from him; and (2) his statement was also accurate.

  • http://zachriel.blogspot.com/2005/07/liberal-v-conservative.html Zachriel

    Voice in the ceiling: Hmmmm…

    It would be best if the President not directly criticize the courts. A better tact would be a simple call for legislation that would pass muster with the third branch that tossed out a century of law. This shows respect for the co-equal branch, expresses disagreement, and provides a way forward.

    However, it is hypocritical to pretend that Republicans haven’t demonized the courts for years, or that Obama’s comments are somehow beyond the Pale.

    [Where is the hypocrisy? From what I have been reading, both left and right have been very clear that the branches of government may talk to and about each other. But there is still a vast difference between a general statement about "activist judges" vs what Obama did to a specific court and court ruling. If you say either all of it is beyond the pale or none of it is, you're refusing to make distinctions and although I am a lay person it seems to me that the ability to make distinctions is at the very heart of a healthy system of law -admin]

  • http://AmusedCynic.com driver

    What Obama did was a classic example of a Saul Alinsky “power tactic,” Rule #13 for Radicals:

    “Pick the target, freeze it, personalize it and polarize it.”

    I was mostly just annoyed by the condescension and self-contradiction in the SOTU up to that point, but that nasty move left me truly angry and appalled. Obama is a scary president. No one should think that this is mere arrogance or incompetence.

  • http://littlemissattila.com Little Miss Attila / Joy McCann

    The ruling did not throw out a century of law; it merely trimmed back some of the excesses of McCain-Feingold, which is only a few years old, and an attempt to ration political speech.

    As for Bush’s rebuke of “activist judges,” it’s worth noting that he was rebuking unnamed “judges,” rather than actual JUSTICES sitting right in front of him. So that makes a different on the etiquette front. Furthermore, local and state judges are not usually considered to be part of the third branch of the Federal government, even if they can be lumped in with the Supreme Court as “the judiciary.”

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  • Rhinestone Suderman

    Actually, we had a Democratic congress, even before Obama’s election, so Democrats are responsible for much of what’s gone wrong in the past few years. It wasn’t just Bush running the country.

    And, at any rate, Bush is no longer president. Really, it’s past time to let go.

  • http://theblackcordelias.wordpress.com/ Nan

    Corporations are a legal person with human rights, believe it or not. For a century they have been denied equal rights under the law. The ruling was limited and did not extend rights to foreign entities.

  • Rhinestone Suderman

    Zachriel, you seem to be making the very argument the Anchoress criticizes in her post; that, if Bush did something wrong, it’s okay for Obama to do it too. In fact, it’s “hypocritical” to point it out.

    I don’t really follow the reasoning here. Are you saying that Obama should never be criticized, because Bush did the same thing? If our president is doing something wrong, isn’t it a good idea to point this out to him? Or our we just supposed to remain silent, no matter what he says and does, because some other president might have done the same things, and it’s supposedly hypocritical to say so?

    That’s a heck of a way to run a country!

  • SallyJune

    Obama’s chiding actually took my breath away with the enormity of his lack of respect. I never, ever thought I would end up emailing the President to take him to task, but I did. I said I expected his apology to be as public as his insult.

  • kingdomservant

    I wonder if it dawns on the One, supposedly a Harvard-educated constitutional lawyer, that the Congress does not have the authority to legislate away the First Amendment by passing another unconstitional law. Now, I suppose they could try, and then probably all 9 justices would smack them down just to make the point.

  • Greta

    Imagine if a REpublican president in a SOTU address had looked down on the supreme court that had ruled 5-4 to support abortion and said “with all due deference to separation of powers, last week the Supreme Court voted to continue the murder of innocent life in the womb. I think American courts should vote to stop the holocaust that has taken the lives of over 50 million innocent babies. This must stop now.” and with that, the republicans had stood in mass and pressed against the judges in loud cheers and applause.

    The left including Obama would have been calling for impeachment for intimidation of the courts and the media would have gone wild in protest. Of course what this president would have been saying was factually true and infinitely more devastating to our country than campaign law changes. Of course I guess that is not entirely true as the planned parenthood and people like Emily’s List have poured millions over the years to elect people to keep killing babies legal. But those kind of donations are fine with our leader and his pro death party.

  • DaveW

    Obama doesn’t understand the decorum most of us expect from a president. It is as simple as that.

    You could point at a lot of things, the silly pseudo-presidential seal during the campaign, the absurd columns at the convention, the “Office of the President Elect” signs during the transition, bowing to other heads of state, beer summits and on and on.

    This is just the latest episode. They give a copy of the speech to the networks so they know what’s coming and train the cameras on the justices (who do not know what’s coming). Blast them on national TV then broadcast their surprise.

    This is the President of the United States we’re talking about.

    It was petty, mean and selfish. Its true that not everyone cares about this but many do and this stuff adds up over time. It adds up to someone that doesn’t appreciate the honor we have bestowed upon him and doesn’t respect the office he holds.

    The last president we had that did not understand the decorum the American people expect in the office was Jimmy Carter. I’d say Obama is going to face the same fate Carter did but I don’t see a Reagan anywhere on the horizon. This is going to get worse before it gets better I’m afraid.

  • http://vita-nostra-in-ecclesia.blogspot.com Bender

    The last president we had that did not understand the decorum the American people expect in the office was Jimmy Carter.

    My memory of Jimmy is fuzzy, but aside from being incompetent and an embarrasment, I don’t remember him being disrespectful of the office. He did (does) have that moral condescension though.

    But I don’t think we need to go back as far as Carter, knowing how Bill Clinton treated the office (literally — if I remember correctly, Bush switched out the sink in the side room).

  • http://zachriel.blogspot.com/2005/07/liberal-v-conservative.html Zachriel

    Rhinestone Suderman: , you seem to be making the very argument the Anchoress criticizes in her post; that, if Bush did something wrong, it’s okay for Obama to do it too. In fact, it’s “hypocritical” to point it out.

    Indeed, not. It would be best if the President not directly criticize the Court. Alito further diminished his own position.

    The_Anchoress: I think reasonable, thoughtful people who debate should be able to make distinctions, particularly when they are not exactly fine distinctions.

    Yes, that is true. What Obama said pales compared to the decades of scorn placed on the courts by the Right, starting with the Brown Decision; but Obama’s words did not advance the cause of civility or respect for the courts.

  • DaveW

    Bender, Carter did away with Hail to the Chief when the president enters the room, talked of having the Marine guards removed, appeared in sweaters, his press conferences were a disorganized mess.

    When Reagan entered office his staff went out of their way to correct this stuff. People stood when he entered the room. His press conferences started with a long shot of him walking down a carpeted hallway to enter the room, at the end the senior reporter (Helen Thomas, believe it or not) would get a signal from the staff and she’d stand up and say “Thank you, Mr. President” to end the event. Hail to the Chief was restored. You never saw Reagan in shirtsleeves, always coat and tie.

    Clinton’s behavior was tawdry but it was private. He was very careful not to repeat Carter’s mistakes in this public presentation area. 20, 30 years ago this stuff was still pretty fresh and the politics of this lesson was still well understood.

    Needless to say, Reagan would never have bowed to a foreign head of state. He knew that was political poison.

    This is all political theater, but it is the image people see and people are influenced by it over time. Obama’s serial pettiness is in this vein. People will tire of this very quickly.

    And anyway, as you point out Carter was an “embarrassment”. That’s what I’m digging through, attempting to relate however clumsily. That embarrassment is exactly what I felt when Obama called out the justices like that on national TV. I was embarrassed.

    People don’t like being embarrassed by the president.

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  • MariaP

    Notice that the Supreme Court ruling on Roe v Wade is , to the Democrats, a pronouncement with greater weight than the Ten Commandments. (It is perhaps, THE great commandment.)
    But this ruling, with which they disagree, must be overturned and the Justices repudiated.In front of the entire country. Like they do in communist countries. It’s revolting.

  • http://jmbalconi.stblogs.com MissJean

    “Alito further diminished his own position.”

    Just as, when a person is criticized with a lie, he diminishes it by standing up for the truth? Because he didn’t diminish his position on the Supreme Court.

    I watched the speech and didn’t catch what he mouthed, just the movement of his head. (I thought he shook his head.)

    As for the comparing of presidents past and present, where will it lead? Since this president is so fond of the sly middle finger, will the next one flip the bird, unremarked? If this group of elected officials spends like drunken sailors, should we just resign ourselves now?

  • http://bcscentral.info Gerry

    Um … slight difference … the activist judges were not only other than Supreme Court justices; in most cases, they were state judges!


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