Osler's Razor

It was stinky cheese!
 

Granted I was sleep deprived (got up yesterday morning at 4:00 a.m.), but I thought the speech was tiresome and lackluster. It was the longest speech of the President's public career, and I think it rivals his second longest speech (his acceptance speech in Denver) as his worst. He is a great wordsmith and has a great delivery--but he is at his best when he makes his point and gets out.

Still don't know what the take away was supposed to be.

Worst of all, I was outraged at his humiliation of the Supreme Court. Agree or disagree with the ruling, that brand of public censure is unconscionable and debased the occasion. In some ways, it was just as bad as Joe Wilson's outburst.

I am a "give the President the benefit of the doubt" kind of guy, but that indecorous rebuke crossed the line and made me angry.
 

One last item:

this is my first public comment on the speech--as I was so mad I thought it best to wait 24 hours before speaking. Almost made it. I blame coming up a few hours short on the Razor's felicity for initiating irresistible discussions...
 

Sadly, this time I was uninformed when I made my intial comments, only having seen some excerpts from the speech. My bad.
 

I like the way David Lat from Above the Law put it, so I'll repost it here:

"...But in the separation of powers, each branch gets to use its powers as it sees fit, to push back against and check the other branches. Tonight was a good illustration of that.

As the executive, Obama has the power of the bully pulpit. He can express disagreement with the Court’s rulings, even to the justices’ faces; that’s his prerogative. And that’s what he did in this evening’s speech."
 

I for one was surprised and dismayed by his choice to do that. It is one thing to disagree with the decision, and to publicly say so (as he did throughout the week it was handed down), but to use your largest possible stage to state your discontent...poor decision.

To make matters worse, it was also poor form on the part of Congress to stand and applaud Obama's insult mere feet away from the Court. To be honest, that was what made my blood boil.

Perhaps we have some packin' to do?
 

I was surprised that he dissed the Supreme Court as they sat at his feet, but I agree with Justin: they are big boys and girls, and they have separate but equal powers. I don't know what the vote was on that campaign finance decision, but I don't think it was unanimous, was it? Some of the justices he was talking to had opposed it and didn't like it, either.

His comments were in the context of talking about reigning in lobbyists' power and excessive campaign spending, so it wasn't as though his rebuke came out of nowhere. And the speech was a big list of stuff he wanted to change.

Maybe not the most PC thing to do, but that's his prerogative. I suppose I was looking for him to show some guts and speak his mind, and I thought he did.

In the rest of the speech, most of the things he asked for were in fact very moderate-Republican. Getting rid of capital gains taxes? Ramping up nuclear power? Didn't he even propose more mining for oil or natural gas? Not things I've heard before in a Democrat's State-of-the-Union wish list.
 

To loosely quote Edmund Burke's warning to his fellow MPs as they debated the actions that would culminate in the loss their American colonies:

"It is not a question of whether we have a right to make them miserable--it is a question of whether it is in our interest to make them happy."

Sure the President has the right to publicly castigate the SCOTUS to their faces on the national government's biggest night of the year. That doesn't make it classy, and that doesn't make it smart.

So much for elevating the discourse and changing the tone.

Not now. Not this time.
 

I was disappointed by his comment about getting out of Iraq by August. First, I think it's always a bad idea to give a specific timeframe for military operations, and secondly, my husband just left earlier this month on 400-day Orders to serve in Iraq. Last time I checked my calendar, that meant he's coming home sometime next spring, not this summer. I guess Mr. President didn't get that memo.
 

I didn't watch it, but I read it, so maybe I'm missing out on some tonal things, but it seems more politics as usual. Obama talks tough, Republicans find things to complain about.

He could come out and do nothing but praise Reagan for two hours straight and Republicans would complain it's not enough praise, or that it was two-faced. I get the fact that they're an opposition party, but "elevating the discourse" and being the bigger person only gets one so far before the gloves have to come off and things have to get a little tough.

I don't think there's anything low-class about expressing disagreement over a divided legal issue before the Court, especially not by a former editor of a law review and Constitutional law professor. Reasonable and ideologically opposed individuals need to be able to speak publicly and criticize each other without fear of stoking the fires. Rs and Ds need to forget that they're enemies and remember that they're all Americans, and, at least in theory, they're all supposed to care more about doing what's best for the nation and the people rather than what helps their team win.

My reading of Obama's speech was that it was less the restatement of his administration's mission (like so many wanted) and a reaffirmation to many of us that he hasn't lost the message despite all the battles and compromises that have been made in the name of political expediency.

The right will never be happy with Democratic economic policies. Attempting to convince them that anything other than deregulation, tax cuts, and a roll back of social programs is what the economy needs is fruitless. The President doesn't need to defend his economic policy from these criticisms, especially given the change in tone from the previous eight State of Union addresses with regard to economics.

A single year into a new administration and everyone forgets what the last eight of them were like, and that US policy and economics stretches far beyond the boundaries of the White House and Washington. The right needs to decide what their caricature of Obama will be: hapless, Johnny-come-lately bumbler or evil Marxist mastermind out to undermine America.
 

Just to be clear, the President did more than publicly state his displeasure with a 5-4 split in which he, as a Constitutional scholar, believed the "4" was correct. He incorrectly stated the extent of the holding, despite the fact that the majority specifically withheld ruling on whether the government had a compelling interest in restricting foreign corporations in the free speech arena. That question was not yet ripe for discussion, and the majority acknowledge that.

It is the fact that the President IS a former Constitutional Law professor that makes his statement so disturbing. The President was not voicing his disagreement with the majority holding; he was simply twisting it for political gain. Shame on him.
 

Anon @ 11:21-

Don't worry, I'm sure that every big corporation in the US will exercise its individual free speech rights in running millions and millions of dollars in ads against him in 2012.
 

Justin - Let's face facts: The press is owned by the same big corporations you seem to fear will somehow appear for the very first time in 2012 to influence an election.

Whether you are a Democrat or Republican, you have to accept that big corporations have been exercising the right to influence elections through the media for a long time. Does it bother you that the corporations that own news organizations and the corporations that don't are on the same even ground now?
 

Anon, the whole Alito/Obama thing is blown way out of proportion. Read the Fact Check link I posted: this paves the way for future cases challenging just the thing President Obama said. Foreigners possess First Amendment rights, the same as U.S. citizens. Why should foreign corporations receive different treatment than US corporations?
 

What bothers me is the fact that now Exxon Mobil can devote as much money as it deems necessary to promote the candidate it thinks will most effectively represent its interests (or against the candidate it wants defeated). If I want to give money to a political candidate to support a cause, I'm limited to a few thousand dollars. But Exxon Mobil can now dump millions into the same cause, subject to limited restrictions. So who wins here, the American people or American corporations? If you think it's the American people, try taking on Exxon Mobil or Cargill in a fundraising contest and let me know how it goes.
 

Now Justin, Exxon has rights too. And feelings. You're hurting Exxon's feelings by suggesting that they might act out of an interest in their bottom line rather than desiring what is best for the nation and their fellow citizens, since the outlook of Exxon-the-entity is considerably more global than that of "natural persons" like you or I. Nevertheless, Exxon has a right to free expression, the same as you do. You could have access to all the money and legal status that Exxon has... if, you know, you had people willing to invest billions into you personally because of all the oil you control.

What? You don't control massive shipping lanes that provide fuel and raw materials to people around the world? Well, here's some bootstraps! Get to hoistin'!
 

I'm sure Soros, Microsoft, Goldman Sachs, Turner, and Warren Buffet can balance Exxon. So no need to worry...and no matter how much MSNBC costs GE, they don't seem to be going away. What Dem's are worried about are the little guys getting in the mix (like a couple $100K paid for the swiftboat ads that shut down Kerry).
 

Loved the student loan income based repayment plan!!

I absolutely hated the disrepect shown to the Supreme Court. Maybe I over-reacted... but I was shocked. Not just with what the president said, but with the people standing and claping around the Judges. I may have lost what little respect I had for this administration.
 

How long 'till Scalia starts a smack-down sentence with "All due respect to separation of powers, but..."?
 

For Lane:

You should watch the video. As you say, "tone," in this case is a crucial element.

In addition to Obama being wrong in part on his facts (at least that is what a lot of smart people including Linda Greenhouse are saying), he incited a Democratic Leadership-led taunt. In your face SCOTUS!

Watch it. Look at the faces of the SCOTUS delegation. I enjoyed your theoretical exegesis, but I am interested in your reaction to the incident after you actually see it.
 

I think the President should tp Samuel Alito's house, or perhaps, they could have a friendly wager about the Lions and the Tigers this fall?
 

Regardless of whether you agree that Obama could make his statements about the SCOTUS based on separation of powers, I think it was a bad idea to piss off the guys who possibly have the last say on all of your policies. Some of those cases that arguably aren't ripe or there is no standing may be decided in favor of the SCOTUS deciding the merits of the case so a law can be struck down as unconstitutional. What's the saying about cutting off your nose to spite your face?
 

I agree with your analogy, Anonymous, except it would be apt to add that Congress almost always has the ability to come in and try to repair your nose, or to craft you a new nose consistent with Dr. SCOTUS's findings.

That analogy took a weird turn right out of the gate.
 

Ok, I watched the video of that bit. It's a manufactured controversy. Obama's exegesis and exhortation to Congress is in line with what four of the justices thought. It wasn't disrespectful to the court in the least, unless agreeing with dissents is suddenly disrespectful.

Part of the SOTU Address is to encourage Congress to respond to current issues. Where was all this outrage when Bush made similar exhortations? Or is it only disrespectful when a black man criticizes the opinion of a white man?
 

And regarding the Democrats' cheering after Obama criticized the Supreme Court: for the first time, it struck me that it would be great if the Dems and Repubs were forced to mix during the State of the Union. I mean, give them a seat assignment, D-R-D-R-D-R, etc, sitting intermingled, like boys and girls in elementary school.

I wonder if they would be so inclined to act en masse and cheer for every other sentence if they were sitting next to each other. Maybe then some of them would even find themselves cheering for something the other party said?

Just wishful thinking . . .
 

Lane:

Remind me about the time Bush did something similar. My recollection is that Bush wouldn't even publicly criticize Hamdan.

Do I have that wrong?
 

Not about Hamdan or Rasul but both Bush and Reagan have publicly criticized the Court: http://mediamatters.org/iphone/research/201001290019
 

Really Lane, the race card?
 

Lane:

After Media Matters (an organization with an axe to grind) combed its databases furiously for anything to hang their hat on, all they come up with is one time Bush objected about activist judges who were out to redefine marriage.

The problem: not a Supreme Court case. That issue never came before the High Court.

Decision: not similar.

What gets me most about what happened on Wednesday was the bullying aspect of it. The mob aspect of it. The glee with which Congressman all stood around and taunted their "honored guests" from the Court.

I hate bullies. I made it my business in high school and beyond to stand up to bullies and give them hell. It is the one thing that really makes me fighting mad.

I never touched one freshman on initiation day in HS or a "pledge" in college (and I never allowed one upper classmen to touch me when I was a freshman).

Frankly, I cringe when people gang up on you, Lane, on this blog (although I am okay when RRL is the focus of the "wildings").

What the President and Leaders in Congress did was shameful.
 

Media Matters may not exactly be unbiased, but they're in general accord with FactCheck and other media watchdog websites... even if they do tend to watch Fox a little more closely. Bush was also critical of Roe v. Wade (as are most Republicans), going so far as to say the justices there usurped the power of the legislature.

My point is that what Obama said, and how he said it, wasn't "bullying." I'm no more a fan of bullying than you, but it sounded like a professional disagreement. Obama was much more forceful with the Republicans when invited to speak with them privately, but even then, where do we draw the line between bullying and tough talking? Listen to some of the talk that came from the Republicans during the campaign ("palling around with terrorists," anything related to Rev. Wright, the whole birther thing, anything Michele Bachmann says).

That wasn't bullying then. Or the Swift Boat ads against Kerry. They were misleading (if not untruthful) but they weren't bullying. Obama's disagreement with the majority in Citizens United just isn't bullying, no more than the dissent itself was bullying since it advanced those same arguments.

I've not been able to find any further comment on the matter by Justice Alito; yet, to hear O'Reilly tell it (his was the only show I watched with a response; I understand Hannity had one as well), little Sammy Alito sat tearfully in the front row as Obama ripped up a copy of an opinion Alito didn't write, threw it in his face, and kicked his puppy.

I watched the video. Alito mouths his disagreement and life goes on. It wasn't done disrespectfully, it wasn't an off-base criticism (at least not according to nearly half the Court) and it was done by the head of an equal branch of government and a Constitutional scholar.

So now I'm curious: if, say, Obama had made the statement at a press conference, and not a public address, would your reaction be different? Is it the setting which changes an otherwise innocuous comment into "bullying?" Because if so, Presidents have always used the SOTU Address as a bully pulpit for their policies.

If it's not the setting, and the actual substance of the comment is neither insulting nor disrespectful to the Court as an institution, nor a justice personally, then what is the problem?

That, anonymous, is why I played the race card. Because the whole affair smacks of unintentional racism, the feeling that a black man should not be criticizing a white man. I'm not saying it's conscious, but there's a reason we have subconscious reactions to things: they're ingrained into us by our culture.
 

Lane - so it is the subconcious thing I can't wrap my mind around: Because I am not thinking about the black and white race factor, I am therefore guided by it? I am racist because I don't explicitly consider and rule out race as a factor when reaching my conclusion that I disagree with a person of another race? I am so confused.

You have forever preserved racism as your fall back argument by using the phrase "unintentional racism." Every time a reasoned argument might weigh heavier than your own, you simply have to whip out your unintentional race card. You can call me a racist, yet soften the blow by saying, well you just did not consider it-after all it was so deeply ingrained in your subconcious by your racist upbringing that you could not escape your racist tendency.

I guess the President was only voicing disagreement with the 4 white justices in the majority, because surely he was not attacking Justice Thomas. I think absurd comes to mind. Maybe, just maybe, people CAN disagree without race being an issue.

Bill Cosby has been criticized for publicly telling the black community to stop relying on black as an excuse. Maybe you would do well to follow his advice. Raise race when it is an issue, not when you need it to be.
 

Lane:

Real quick b/c I am on the run, but this is not about disagreement. Somewhere, early on in this convesation, I said "reasonable people will disagree."

This is about an event that belongs to the nation. This is about six justices representing the branch of government that has the least legitimate power under the Constitution--authority based on respect and tradition.

Attack the Court if you want--join the ranks of Jefferson, Jackson, and a whole host of superstar presidents--but not there, not then, not on that night--while they sit there as guests utterly defenseless and handcuffed by tradition.

In re Obama's erroneous assertion: quoting a dissenting opinion that offers a "parade of horrors" of unfortunate potential ramifications, "if" the majority thinking is extended, is not exactly making the strongest factual argument (again--I don't see anybody defending the President's assertion on foreign corporations as factual--do you?).

Lane, I hear you. I respect your opinion on a matter where interpretations differ--but, having said that, I cannot disagree more with your defense.
 

So we can quit polluting the Prof's blog with our arguments, I've got a continuation of the ideas of critical race theory and how they apply forthcoming, anonymous. I hope you'll join me there.

And AWF, the assertion wasn't factual but rather theoretical (what might happen if we follow the majority's thinking to its logical conclusion, which is why Congress is currently considering limits that fall within the bounds of the opinion that restrict foreign corporations from spending money). So that's that: I don't think anyone is saying it is factual, but certainly there are those that think like the President and the dissent do.

If it's the setting that bothers you, consider: the State of the Union Address is constitutionally mandated from the President to Congress. The Court can attend, but doesn't have to. The President's disagreement with the Court is a valid part of what the President can talk about to Congress, especially when asking them to enact legislation in response to Supreme Court decisions. Again, I just don't see them as utterly defenseless and handcuffed, and I've got to say that as lawyers and jurists, they probably didn't see it that way either (I've not been able to find any direct comment on the affair from a justice).