ThinkProgress could not find a single example of an American Bar Association statement criticizing these Republican presidents for making a claim that has become a staple of Republican political rhetoric — the claim that activist judges are twisting the law in order to negate the will of the people. We could not find such a statement in the online archives of their press releases, and when we contacted the ABA to point out that they do not appear to have criticized past presidents for their attacks on judicial activism, an ABA spokesperson told us that “everything you’ve said seems to be accurate.”
Which is why a recent statement by ABA President Bill Robinson, which criticized President Obama’s response to the oral arguments in the Affordable Care Act case, is so baffling:
President Barack Obama’s remarks on Monday speculating about the Supreme Court’s potential decision in the health care legislation appeal are troubling. Particularly worrisome was his suggestion that the court’s decision in this case could serve as a “good example” of what some commentators have cited as “judicial activism or a lack of judicial restraint” by an “unelected group of people.” . . .
It is incumbent on all of our elected officials—including those aspiring to hold office—to continually demonstrate that the courtroom is not a political arena. It is a measure of a free society that individuals are able to openly disagree with court decisions, but we should expect our leaders to refrain from partisan statements aimed at judges fulfilling their constitutional role and responsibilities.
We contacted the ABA at 9:30 this morning to give them an opportunity to produce a past statement criticizing Republicans for engaging in political rhetoric critical of the judiciary. Although they did point us to a criticism of Newt Gingrich’s recent calls to “Abolish courts. Ignore rulings. [And] Impeach judges,” as of this writing they were unable to produce a single example of an ABA statement criticizing a past Republican president (or similarly prominent official) merely for calling judicial activism a problem. Gingrich’s proposals, which call for specific lawless actions to be taken in response to judicial decisions he disagrees with, are different in kind from Presidents Nixon, Reagan, Bush and Obama’s statements, which merely advocate the position that political power should rest with elected officials and not unelected judges.
It’s difficult to imagine a principled reason why the ABA would deem decades of Republican anti-judicial rhetoric unworthy of a statement, then suddenly deem President Obama’s single, nearly identical statement to be over the line. Unfortunately, however, there is strong evidence suggesting a partisan explanation for why the ABA’s president suddenly came out against Obama — ABA President Robinson is a major Republican donor:
In fairness to Robinson, he has, in the past, put the interests of the legal profession that he is supposed to represent as ABA President ahead of his partisan political affiliation. Robinson recently praised the Obama Administration’s support for legal services for the poor, for example.
Unfortunately, Robinson’s most recent statement appears to be part of a pattern of Republican legal luminaries placing partisanship ahead of precedent and reasoned analysis in the context of the health care litigation. Republican Judge Jerry Smith recently issued a partisan order trying to force DOJ to criticize President Obama. And, of course, the five most powerful Republican judges in the country recently gave the Affordable Care Act a cold reception in the Supreme Court, despite the fact that three of them have previously joined decisions indicating that health reform is constitutional.