The New Yorker magazine was a fierce opponent of President Bush (most obviously, Jane Mayer’s attacks on Bush anti-terrorist policies) and is now a enthusiastic supporter of President Obama. The latest proof comes in an article on Obama’s judicial legacy by New Yorker writer (and CNN legal analyst) Jeffrey Toobin.
Like many a liberal journalist, Toobin wants to help the president pretend that conservatives are extremists and liberal Democrats are “centrists” who are focused on competence, not ideology:
Beyond diversity, the story of Obama’s influence on the courts is more complex. Indeed, it could serve as a metaphor for his Presidency: symbolically rich but substantively hazy. Obama took office after years of intense conservative focus on the courts. President George W. Bush spoke often of the need for judges who “will strictly apply the Constitution and laws, not legislate from the bench.” The conservative agenda included limiting abortion rights, ending racial preferences, and lowering barriers between church and state. Obama has shrunk from an ideological battle with conservatives on these constitutional issues. Claims for his judges are grounded in their personal integrity and professional competence....
“The bulk of my nominees, twenty years ago or even ten years ago, would have been considered very much centrists, well within the mainstream of American jurisprudence, not particularly fire-breathing or ideologically driven,” Obama went on. “So the fact that now Democratic appointees and Republican appointees tend to vote differently on issues really has more to do with the shift in the Republican Party and in the nature of Republican-appointed jurists. . . . Democrats haven’t moved from where they were.”
This is how Obama has attempted to define his Presidency—as an exemplar of common sense set against the extremism of the contemporary Republican Party. He has had the same mixed success in making this argument for his judges as he has had on most other issues during the past six years.
Toobin allowed that Obama has made strides on “gay rights” – which is exactly one of the issues where they’ve demonstrated fervent liberal activism, even if they can claim the polls are going with the liberals now on the issue.
Toobin also allowed Obama to blame Congress for judicial activism. The chutzpah flows across the page:
Obama has stopped pretending that he has much respect for Congress. He had minimal tolerance for legislative horse-trading even when he was a legislator. Now, after six years of implacable Republican opposition to everything he has proposed, he sounds fed up.
“Because Congress is not working the way it’s supposed to, there’s both pressure on administrative agencies and pressure on the courts to sort through, interpret, and validate or not validate decisions that in a better-functioning democracy would be clearer and less ambiguous,” Obama said.
He pointed out that the failure of Congress to pass legislation on climate change and immigration left his Administration with little guidance on how to proceed on those issues. When there is gridlock in Congress, “the executive branch has to make a whole series of decisions,” Obama said. “That, in turn, puts more burden on the Court to interpret whether the executive actions are within the authority of the President and whether they’re interpreting statutes properly. All of which I think further politicizes the courts.”
Most accounts of this interview focus on Obama declining the notion he could join the Supreme Court after leaving the White House, that it's "too monastic," for him. “I love nutting out these problems, wrestling with these arguments. I love teaching. I miss the classroom and engaging with students. But I think being a Justice is a little bit too monastic for me. Particularly after having spent six years and what will be eight years in this bubble, I think I need to get outside a little bit more.”
