Conservative Legal Scholar Confronts CNN's Toobin for Defending Obama

The fact that CNN's senior legal analyst squared off against a conservative legal scholar should be telling for the network's liberal bias. On Thursday night's Anderson Cooper 360, CNN's Jeffrey Toobin was confronted by Jay Sekulow of the American Center for Law and Justice over his defense of President Obama's comments on a pending Supreme Court case.

"Jeff, do you know another President of the United States during a case that was argued and pending that made a statement about how the outcome of the case can be and talking about unelected judges?" Sekulow grilled Toobin. "And calling someone that would strike the law as unconstitutional 'judicial activist'?"

CNN's Jeffrey Toobin has defended Obama for the appropriateness of his remarks where he said if the Supreme Court struck down his health care bill it would be "judicial activism" and "unprecedented." Toobin said the comments were "completely appropriate and uncontroversial."

Sekulow took issue with the fact that the President was making such remarks during a case that had not yet been decided. Toobin admitted that it was unprecedented, but shrugged it off. "But I mean so what? I don't think that matters," he insisted. He called the whole ordeal a "phony controversy."

Meanwhile, Toobin also continued to excoriate the judges from the U.S. Fifth Circuit Court who responded to Obama by making the Justice Department write a single-spaced three page memo on the administration's take on judicial review. Toobin called that act a "disgrace"

A transcript of the segment, which aired on April 5 on Anderson Cooper 360 at 8:20 p.m. EDT is as follows:

[8:20]

WOLF BLITZER: A very strange chapter in American history is unfolding right now. And our senior legal analyst Jeffrey Toobin is right at the center of it, along with the President of the United States. Jeff, and we'll explain why in just a moment, is, shall we say, a little ticked off.

(...)

[8:22]

BLITZER: Jeff, first to you. Can federal judges be distressed by what the President said without being characterized as deranged by hatred?

JEFFREY TOOBIN, CNN senior legal analyst: Absolutely not. This is a phony controversy from day one. What Obama said in its full context is completely appropriate and uncontroversial. Of course the President knows that judges can declare laws unconstitutional. His own administration is asking the courts to declare the Defense of Marriage Act unconstitutional. They declared laws unconstitutional every year.

Every first year law student, most college students know that. Obama didn't suggest otherwise. He simply said under the precedence of the Commerce Clause, which is what's relevant in the health care law, he thinks the Supreme Court should uphold this law. There's nothing wrong with that.

BLITZER: Jay, I know you disagree with Jeff on this. But if politics an ideology permeated the judiciaries to really damaging levels at least in some instances.

JAY SEKULOW, chief counsel, American Center for Law and Justice: Well, look, I mean the damage here was the President of the United States chastises, in essence, the Supreme Court of the United States on a case they heard the week before. It was my friend Jeff Toobin who said last week that the administration had a train wreck on one day and a plane wreck on the next day in their oral arguments.

And then the President, defending his position calls justices that would overturn an act of Congress, a law signed by the President, judicial activists. Remember the rest of that quote says, unelected judges.

Now the fact of the matter is this. A, the Fifth Circuit, did they have the right to ask for that letter brief? Sure. I've had cases, we've had an oral argument, and during the brief – during the questioning they'll ask for additional briefing on a point. Are the judges – are a lot of judges upset about this? They don't like to be called what the President did. And the unprecedented aspect of this, in my view, Wolf, is the fact that the President not only talked about judicial philosophy but talked about a case currently before the Court that was argued, voted on last week, opinions being written as when we don't know which way the case is going to go.

It's going to be very close, I suspect. And I think Lawrence Tribe was right when he said the president misspoke, because, Jeff, in – I understand you want to take it to a broader context, which is what the administration tried to do on Tuesday and Wednesday. But the fact of the matter is the President acted and made that statement as if it was shocking that a Court might overturn a decision or a law signed by the President passed by Congress. And by the way, that was mistake number one. Of course the Court can do it. Mistake number two, this is not legislation passed with wide support. I mean, who are we kidding here? This was closely divided in Congress and I suspect, closely divided the Supreme Court.

BLITZER: It was along partisan lines, but the Democrats in the House and the Senate had a significant majority. But Jeff, Lawrence Tribe –

SEKULOW: Five votes.

BLITZER: – your professor at Harvard Law School. A constitutional law scholar, ally of the President, he'd said that presidents should generally refrain from commenting on pending cases during the process of judicial deliberation. Do you think the President regrets making those comments?

TOOBIN: Well, I certainly couldn't speak for Barack Obama. I don't know what he is thinking right now. I think the point is those of us who are watching, those of us who are trying to be fair here, recognize that this is a huge case, a huge issue. This is the signature piece of legislation that he has signed as President of the United States.

And you bet he thinks it's constitutional. And he has every right to say that. I think this idea that the Constitution and judges are these delicate flowers that you can't – you can't criticize, you can't say anything. They are very powerful people. The Constitution sets up a system where they are insulated from political pressure.

What can Barack Obama do to the Supreme Court justices? He can withhold invitations to state dinners –

JAY SEKULOW, chief counsel, American Center for Law and Justice: Why did he have to make the statement?

TOOBIN: Because he's the President of the United States. And this is a pressing national issue.

SEKULOW: Well, do you know another President of the United States – Jeff, do you know another President of the United States during a case that was argued and pending that made a statement about how the outcome of the case can be and talking about unelected judges? And calling someone that would strike the law as unconstitutional judicial activist? Can you name a president about a case that was pending that ever did that?

(Crosstalk)

TOOBIN: I mean there are a lot of different pieces of your question, I think, you know, President Bush –

(Crosstalk)

TOOBIN: The recent President Bush used to talk about judicial activism all the time.

SEKULOW: Not during a pending case.

TOOBIN: And judges not legislating from the bench.

SEKULOW: Sure.

TOOBIN: I mean, you know –

(Crosstalk)

SEKULOW: Not while the case – not on a particular case, which was pending.

TOOBIN: Well, not on a case that was pending, but –

(Crrosstalk)

TOOBIN: But I mean so what? I don't think that's –

SEKULOW: Right.

TOOBIN: I don't think that matters.

Matt Hadro
Matt Hadro
Matt Hadro was a News Analyst for the Media Research Center's News Analysis Division from 2010 through early 2014