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Thursday, January 28, 2010

Alito Was Not "Rude" Enough To His Arrogancy

The stupid meme of the day is that Supreme Court Justice Samuel Alito was "rude" to Obama during the State of the Union address because Alito grimaced and mouthed the words "not true" when Obama stoked the crowd with a lie about a recent Supreme Court decision:
  • The AP headlines its article Alito disparages Obama's Supreme Court criticism, which is as clear a case of getting something ass backwards as there ever were.
  • Glenn Greenwald, the self-appointed guardian of free speech (with which he agrees)[see update below], proclaims that Alito's conduct "was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court."
  • Professor Adam Winkler of UCLA Law writes at HuffPo that Alito was Rude (but Right).
Interesting spin considering that it was Obama who by almost all accounts was wrong in his criticism and who intentionally sought to intimidate the Justices.

Obama embarrassed himself in ways he is incapable of appreciating from atop his mountain hideout. Having Chuck Schumer lean forward towards the Justices wildly clapping his hands at the attack on the Court was abhorrent.

The visual of the Justices sitting as the crowd (dare I say "mob") of Democrats around them jumped to their feet in exultation of Obama's prevarication was a low point in this already lowly presidency.

Alito was correct to react to Obama's attack, if for nothing else than to preserve that separation of powers for which Obama claims to have "all due respect."

Alito's reaction, though, was far too reserved. Alito should have risen to his feet and walked out on His Arrogancy.

Which is exactly what millions of disgusted voters did in Virginia, New Jersey and Massachusetts.

Update: I like this post by Paul Mirengoff at Power Line Blog, A sound bite too far:

Last night, Justice Alito reportedly responded to Obama's sound bite by quietly saying something like "that's not true." Alito was right at least two levels. First, as noted above and as Linda Greenhouse acknowledges, Citizens United did not disturb any principles that date back 100 years.

Second, as Shannen Coffin points out, the decision in Citizens United is quite clear that it does not address whether the government can regulate improper foreign influence over our electoral process. Writing for the majority, Justice Kennedy 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."

Presidents should feel free to criticize important Supreme Court decisions with which they disagree. It's bad form, however, to do so at an event where Justices are in attendance by invitation. And it is unconscionable to do so by blatantly misrepresenting what the Court has said.

It was more than bad form. It was a deliberate attempt by Obama to intimidate the Court. A coach yells at the referee not out of an expectation that the completed call will be changed, but in the hope of influencing the next call.

It also was a cowardly act, because Obama knew that the Justices would be constrained in responding, both then and later. Indeed, a mere grimace and alleged mouthing of a few words has brought the legal apparatchiks down on Alito's head.

Update No. 2: In comments to this post, Glenn Greenwald takes issue with my use of the words "with which he agrees." To the extent those words are construed as a sweeping interpretation of Greenwald's career, then the words did not convey properly that I was focusing on Greenwald's position as to the Alito reaction (other commenters understood this distinction).

Greenwald's post, to which I linked, is completely ideological in expecting that Alito should have sat like a stone statue while Obama politicized the Court ruling in a situation meant to embarrass and humiliate the majority of the Court before almost the entirety of the nation's political leadership and tens of millions of Americans who otherwise would know nothing about the Court ruling at issue. Yet Greenwald spends much of his post defending Obama's conduct and belittling criticism of Obama. Greenwald's own post leads to the reasonable conclusion that whatever he thought of the underlying Court ruling giving rise to this dispute, Greenwald's antipathy towards Alito's judicial philosophy and rulings colored Greenwald's view of this event. That's what I meant by "with which he agrees" and I stand by it.

Providing he stayed within the bounds of the judicial cannons of ethics (which he clearly did), Alito had every bit as much right to express his displeasure with Obama's confrontational conduct as did anyone else, and it did not bring shame on the Court or lessen the stature of the Court.

And as to Greenwald's point, in his post, that Justices and the Joint Chiefs of Staff "never applaud or otherwise express any reaction at a State of the Union address," Greenwald is in error, see Joe My God.

Related Posts:
A Window Into His Divisive Soul
First Take on SOTU - A Small Speech

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  1. "Glenn Greenwald, the self-appointed guardian of free speech (with which he agrees")

    Good point. That must be why I defended Mark Steyn and Ezra Levant from the Canadian Human Rights Commissions, even though I think Steyn and Levant's ideas are revolting.

    It must also be why I defended numerous neo-Nazis in First Amendment cases despite finding their views repugnant.

    It must also be why I frequently write against laws that crimianlize or otherwise punish hate speech, even though hate speech is often vile.

    And it must also be why I support the majority ruling in Citizens United,

    Criticizing someone for their comments -- as I did with Justice Alito -- is not the same as arguing that they lack the right to say it. I'd say not only first-year-law students, but most seventh graders, understand that distinction. How did it escape you?

    Whatever else is true, saying that I only defend First Amendment rights when it involves ideas I agree with is one of the most patently false statements one can make.

  2. Amazing how they call out Alito for breaking with "tradition" and reacting to part of the speech, but don't call out Obama for first breaking with tradition and calling out the court.

  3. How awesome would it have been if Alito stood up and yell "You lie!"??

    Where's Modo's "Not true, boy" column today?? Modo, have you grown disenchanted with The One?? Heart ache.

  4. I think the point the Professor made was that you were a guardian of Obama's free speech criticism behavior of the SCOTUS, but you called out Alito for that very same behavior.

    It's an interesting contrast to point out when in fact it was the POTUS who a) started it; and b) was in actuality wrong in how he characterized the effects of the SCOTUS decision.

  5. "I think the point the Professor made was that you were a guardian of Obama's free speech criticism behavior of the SCOTUS, but you called out Alito for that very same behavior."

    That makes even less sense since I agree with Alito, and disagree with Obama, about Citizens United -- as I've written about at length, much to the dismay of most of my readers.

    So if he were right that I only defend free speech when I agree with it, then that would mean, by definition, that I'd be criticizing Obama and defending Alito. Instead, I did the opposite.

    That's yet another example proving the falsity of his claim.

  6. @Greenwald: If Alito was guilty of breach of protocol, it was only in response to Obama's much more serious breach of protocol.

    Obama has a right to express his opinion, but to express his opinion the way he did in that setting, in the presence of the Justices, who were physically surrounded by Obama's partisan supporters, undermines any perception or reality of a Court that is "separate and detached from partisan wars."

    Exit thoughts:

    ~Ridicule is man’s most potent weapon. It is almost impossible to counteract ridicule. It also infuriates the opposition, who then react to your advantage.

    ~Make the enemy live up to its own book of rules. You can kill them with this, for they can no more obey their own rules than the Christian Church can live up to Christianity.

  7. For God's sake, Alito spoke sotto voce. Alito answered reflexively. Obama acted with malice aforethought. The only bully in the room was the one in the bully pulpit. What the hell is the matter with you?

  8. Yes, the man who quietly expresses his disagreement with something said in a speech, in a fashion that no one would have seen absent the glut of TV cameras pointing at people *other* than the guy, y'know, *in front of microphones, making the speech* - he's the rude one. Never mind all those other people hooting and hollering and jeering, that's perfectly acceptable.

    *Are* there any examples of calm, reasoned, intellectual legislators in the Democratic Party? I hope so - I would hate to be left thinking that our opponents in this political 'debate' are, to a man, classless boors.

  9. The empty-suit-in-chief once again demonstrated what a small-minded, petulant, little punk thug he is at heart. Violating the long-established protocol of the setting and event, he issued a smack-down to a group he knew would have too much class to respond. This is what "community organizers" do. They don't build, they destroy. With his delusional messianic complex, this is one potentially very dangerous person.

  10. Mr. Schumer had better stay out of the way of the Supreme Court. His enthusiastic applause, directed towards the members of the court, may work against him.
    I recall playing in a slow-pitch softball league, when a batter complained to the umpire about a called strike. The umpire looked at the batter and said, "You know, I think this next pitch is going to be a strike, too."

  11. Per Greenwald's comment:

    Dehumanizing moral inversion. Orwellian. Right down the leftist wheelhouse. Alito is supposed to sit there and silently absorb abuse and misrepresentation. To be a human, to at least speak to himself the truth (and probably while not even being aware he was being videotaped at that moment) is forbidden. At the same time, this completely compunctionless public liar has license to lie without rebuke because, what, he's "president", part of one of the three branches of government?

    Get lost. Alito should have stood up and walked out. The president has every right to rally his partisans and offer his views and I'd give him liberty to say most anything to advance his cause, but he breached all precedent by both calling out the Supreme Court in that setting and then lying.

  12. As someone who only listened and didn't watch, I didn't realize anything controversial happened until this morning.

    It sounds like Obama made a pretty big error. Without tv cameras, the public would not have been privy to the judge's dissent.

    He really needs new speechwriters.

  13. Greenwald's attack on Alito reads like parody. According to Greenwald, Alito's modest and obviously unpremeditated reaction justifies the claim that Alito "flamboyantly insinuat[ed] himself into a pure political event, in a highly politicized manner."

    Then there’s this: "What's most disturbing here is the increasing trend of right-wing Justices inserting themselves ever more aggressively into overtly political disputes in a way that seriously undermines their claims of apolitical objectivity. Antonin Scalia goes hunting with Dick Cheney, dubiously refuses to recuse himself from a lawsuit challenging the legality of Cheney's actions, and then rules in Cheney's favor."

    There are so many problems with this, it's hard to know where to begin. First, to go hunting, even with the vice president, is not to insert oneself into a political dispute. Second, the case to which Greenwald refers wasn't a "political dispute" as such, but rather a LEGAL dispute (albeit one with political ramifications). Third, as a justice, Scalia can hardly be criticized for "inserting" himself into a legal dispute that comes before the Supreme Court since that is precisely what he and the other eight justices are there for. Fourth, although Greenwald labels Scalia's decision not to recuse himself "dubious," Scalia explained his non-recusal decision in a published memorandum. The fact that Scalia's critics may disagree with Scalia's rationale not to recuse himself does not render Scalia's decision "dubious." Finally, while it's true that Scalia ruled in Cheney's favor in the case in question, it was a lopsided, 7-2 decision.

    The main point Greenwald amazingly seems to miss is that Justice Alito was NOT expressing a political view in pointing out that Obama's words were "not true." It would be one thing if Alito had stood up to applaud tax cuts or the end of DADT, or some other solely political issue. But the specific thing that drew a response from Alito was Obama's factually incorrect characterization of a just-decided Supreme Court decision. Clearly, it does no offense to the proper role of Supreme Court Justices for them to state what their own decisions do or do not hold, or whether or not their decisions represent a departure from precedent.

    It is difficult to imagine that, in any other context, Greenwald would be offended by a Supreme Court justice who publicly corrected someone who had just misstated the facts concerning a case that had just come before the court. I think what really annoyed Greenwald is that Alito's reflexive impulse to correct the false impression created by the president blunted the effectiveness of Obama's attack on the Court. What Greenwald and many liberals are really saying, in effect, is that when a president enters the halls of Congress to deliver a SOTU, it's understood that he has some special license to do violence against the truth, and supreme court justices, being mere bystanders, have an obligation to stand by and do nothing while the truth is being viciously assaulted. However, Obama miscalculated as to the willingness of ALL the members of the Court in attendance to silently acquiesce when such a demagogic attack is being made on the Court itself. It was Obama's risk in launching such a ludicrous and offensive attack that he would invite some kind of response that would make him look foolish and deceitful, and that is exactly what happened.

  14. Obama pulled a Ricky Bobby card and started that attack with some version of "with all due respect".
    He knew what he was saying was wrong. Mr Greenwald, are you in the habit of defending Ricky Bobby?


  15. Yeah, Greenwald calls a lip-reading caught by a camera "flamboyant?" The silly rookie error made by Obama to even discuss a First Amendment ruling from a political point of view demonstrates that deep down inside, this guy thinks he is above the US Constitution, at least in some of its stare decisis positions.

    At the same time, this completely compunctionless public liar has license to lie without rebuke because, what, he's "president", part of one of the three branches of government?

    Besides the breach of protocol by this tyro of a POTUS whose zero political experience running anything is becoming glaringly evident, Obama falsely demagogued the foreign contributions, distorted how corporations can contribute, and presented an inaccurate historical precedent-trail, all while driving even lifer-lefties like Linda Greenhouse to note how "imprecise" BHO's SOTU attack on the SCOTUS was. Can you imagine what Linda would say if GWB had committed such a laundry list of rookie unforced errors? Much stronger than "imprecise," you can bet on that!

  16. Shorter Greenwald: "Lese mageste!"

  17. While everyone has a right to criticize anyone they want, it was boorish for Obama to choose hus SOTU speech to attack a branch of the government that he knew was precluded from defending themselves. Not only was it out of place, it was done in a fashion that looked like a tyrant inciting a mob.

    I doubt that this went over well across America and only further underscores how right the voters of MA were last week. What we witnessed last night was how utterly petty and childish our entrenched criminal class of elected weasels truly are.

    Since the Justices were not forewarned that they would be attacked so scurrilously, they should refuse to attend next year. The Chief Justice should demand a public apology from the TOTUS if for no other reason than for breach of established protocol.

  18. And how about that shout out to Michelle for leading the campaign against obesity? Not only is that the lamest reason for acknowledging anyone during a SOTU speech, but he did it while also ignoring the two heroes of the Fort Hood massacre sitting right next to her! Stay classy Barry!

  19. I think Harry Reid's giant yawn during the speach was a "serious breach of protocol". The Left should remember that this street goes BOTH ways, and we are watching them intently.

  20. I did not see all of the address, since I cannot stand that man's voice, even a few seconds is hard to stomach. However, I did look at the portion where Alita mouthed, did not shout, "(definitely) not true". Yes it does look like he said more than just "not true". Either way, he did not act in a flamboyant manner as claimed by Greenwald. He was talking only to himself. Is that now a crime? Have the left gone totally bananas?

    The fact is that what POTUS said was not true. It is definitely not true. The provision relating to foreign corporations has not been struck down.

    Perhaps POTUS is angry because there will be more focus on how he got his own campaign contributions from the PACS - and yes he did get foreign contributions which is illegal.

    What POTUS did was intimidation. It is what I would expect from Hugo Chavez and Evo Morales. I would never have thought that the man occupying the position of POTUS would so brazenly state something like that which was meant to intimidate the Supreme Court.... and he had the nerve to talk about the separations of the three parts of government.

    I hope that the justices will keep all of this in mind when challenges are made on pieces of legislation that originated with this present Congress. For example, since Paul Kirk has refused to leave the Senate despite his role being completed, would this mean that anything passed by him is illegal? Good question for the Supreme Court to consider. Then of course there is the question regarding Abominablecare in relation to the Constitution - since Hillarycare was seen to be unconstitutional I cannot see how Abominablecare would be seen as constitutional. Could it be that the justices will now do their job rather than coming to decisions that are quite "iffy" such as Roe vs. Wade? Will we see the end of judicial activism? I hope so....

  21. I think it is silly to say that the decision did not overturn 100 years of precedents, when the actual decision states that it did just that. As such, Obama was right to call the Supremes out. I have problems with corporations and unions considered as persons with free speech rights, and the foreign ownership was not clear in the decision. Regardless, Alito reaction and the decision just seems political, something the Supreme Court should never appear to participate in.

  22. As a lawyer I am sure the author of this blog knows the same rule I know, having spent twenty years in law enforcement. The rule is simple- DO NOT PISS OFF THE JUDGE! Judges are lawyers on steroids. Federal judges are judges who wear superman t-shirts to bed. The nine Supreme Court judges are the single most powerful set of people concentrated anywhere on the planet. Obama just told them they were idiots.

    Here is my post-


    As I said in the post I had a vision of liberal lawyers spitting up their tofu sandwiches and champagne when they heard Obama. Those who have cases coming up in front of the court are trying to move them back three years or looking to buy enough good rope to hang themselves! My ex-partner said it will be even worse for the first DOJ lawyer that comes up in front of the bench. His opening statement will consist of "Please don't hurt me!"

    Obama's arrogance knows no bounds, which is why I don't think he can "work to the center." He believes he IS the center, much like we once believed the earth was the center of the solar system.

    I do know this, from experience- For a few moments of "look how smart I am" in the speech, Obama not only cut off his nose, he may have cut off a far more sensitive organ.

    Sucks to be him.