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.