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April 05, 2012


Buford Gooch

How long before they come to accept that he's just not that smart?


You are too harsh. This is the "changing history" part of change. See too, "changing facts."

clarice feldman

I understand from a friend on the Univ of Chicago faculty that they didn't want to hire him but someone pressed the right buttons. They are eternally shamed that they charged students to take a course by a man who is not and never was a constitutional law scholar.

As for the Ivy League schools that claimed they educated him, a well-deserved black eye, too.

clarice feldman

BTW, Aren't we blessed that we have both Taranto and Maguire looking out for us?


Blessed, indeed, Clarice.


Buford/Clarice are BOTH right-- 'Bam is just not smart, AND he's UNDEReducated. UNDEReducated? how can he be undereducated? he has degrees from Columbia Coll and HLS!! yeah he has degrees, but he was passed through as an exotic Indonesian AA wunderkind-- not a meritorious student. Evidence?--- from yesterday's WSJ-- Lawrence Tribe 'explains' what Obama meant-- it's the height of condenscension for Old White Guy Massa Tribe from the HLS plantation to treat 'Bam like a ventriloquist dummie and explain what 'Bam just said. We've had affirmative action for 30 years-- 'Bam is Exhibit A for the result-- A muppet that was passed through elite institutions by his liberal handlers, what a joke:


I'm just a hack reading up on this, but I don't think it's surprising that Obama would cite Lochner as a way to claim that the Court shouldn't strike down a law like ACA. From Justice Harlan's Lochner v. New York dissent:

The power of the courts to review legislative action in respect of a matter affecting the general welfare exists only "when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law."
The issue is that this is a specific type of law, where the government's interest is in using it's police powers to protect the "public health," and Obama was saying it's the type of law that the SC hasn't struck down since reversing Lochner.

Seems like it should matter that the Lochner was a case involving a state law and police powers (which only states have), but I'd be more interested in reading comments from people who know something about this than in trying to find my own way with these thick goggles on.


LAT 1-07 on Obama's time at Occidental:
"In Boesche's European politics class, Sulzer said he was impressed at how few notes Obama took. "Where I had five pages, Barry had probably a paragraph of the pithiest, tightest prose you'd ever see.... It was very short, very sweet. Obviously somebody almost Clintonesque in being able to sum a whole lot of concepts and place them into a succinct written style."

I wouldn't be surprised if Obama never felt the need to take notes in any class.

Melinda Romanoff

I bet it was Newt, Clarice.

Newton Minow.


imo Owebama doesn't give a hoot what kind of nonsense he spouts, he's talking up a big line to his voters, and that's all that matters to him. I think he relishes the controversies he causes, because that adds to his "see, they don't like me" [because I'm black] line. I think he knew beforehand that his Trojan horse of a bill was going meet with a bad reaction, indeed that he wanted it to be so. Then could cry wahhhhhhhhhhh!!! wahhhhhhhhhhh!!! wahhhhhhhhhhh!!! "poor me" all the way home.

clarice feldman

That's a darn good guess. For sure Newt waws responsible for getting him a position at his firm.


I can imagine him, listening to the Flying Lizards, while high, but what proof that he knows anything,


Ex-- I am not going to try to translate for 'Bam b/c he's an ignorant muppet. I would note that 'Bam hung around the HLSReview and the U of Chi faculty lounge long enough to hear the buzz words, "LOCKNER=BAD!!". So 'Bam is just attacking the old liberal bogeyman Lockner. Of course, 'Bam never (or couldn't ) analyze 14th Amendment jurisprudence to realize that Lockner = Roe, they are both examples of SCOTUS subjective substantive due process. Even Justice Ginsburg figured that out 30 years ago when she wrote Law Review articles about the 14th Amendment.

hit and run

Is that the President speaking about the Constitution or have I blundered into a comedy club?

Barack Obama: Comedy Central Leftist

Since he arrived on the national stage, Obama has mainly dealt with criticism by mocking those who are criticizing him,mostly by stuffing and fluffing those criticisms with a whole lotta straw.

They don't like me because I have a funny middle name and don't look like the other Presidents on the dollar bills.
They drove our economy into the ditch, now their just sippin' on slurpees, they can't have the keys back, they don't know how to drive.
They wanna build a moat and put alligators in it.

For the longest time a large number of people would laugh along with him at those making the criticisms, including of course the media and Hollywood (who could never find anything funny about Obama).

John Kass in 2008:

[Obama is] the Mr. Tumnus of American politics, the gentle forest faun of Narnia, with throngs of reporters trembling to sit with him at tea and cakes, like the little girl in the C.S. Lewis story, as he plays the flute, chanting "We Are The Change We've Been Waiting For." And nobody laughs.

You don't laugh because you can't make fun of Obama. The ground would swallow you whole.

But now poor Obama is beginning to realize that an ever growing number of people are laughing at him and not with him.

And over the next several months, it quite possibly might dawn on him that we'll be laughing at him all the rest of the days of his life. In fact, to paraphrase perhaps the most hyped orator this nation has ever known, "I am absolutely certain that generations from now, we will be able to look back and tell our children that this was the moment when...the rise of laughter at Obama began to grow and our nation began to heal."


Chubby-- I disagree with one thing you said-- I think 'Bam is SHOCKED when he's called out for ignorant statements. NOBODY did that to him at prep school, Occidental, Columbis, HLS, UC, ACORN,Ill State Sen, US Senate. NOBODY. he's was always the wellspoken chaming exotic Indonesian boy-- don't bother correcting his, he's so cute. My God, Joe Biden and Harry Reid said that publicly (in not so many words.)He's the result of the condescending Liberal Elite world-- he is THE empty suit.

clarice feldman

I hope so, hit. Maybe 3/27/12 was the moment when America, like the Kafiristanis in Kipling's "Tha Man Who Would be King" , recognized the king was a flawed human, not a god.


Shocked? I would have said enraged. It the narcissist on display near as I can tell.


Ext, if he had just said "the Court hasn't struck down a law like this since Lochner", I don't think anyone would have argued. (Some of us might make that statement as a criticism of what the Court has done over the past 100+ years instead of what it seems poised to do in June.)

He caused the most trouble for himself by telling the Supreme Court, "I won, so I will trump you on that." The criticism around Lochner stems from the fact that he brought it up in redefining "unprecedented" as "not since the New Deal", when Lochner was from 1905.

Tom Bowler


Justice Harlan's Lochner v. New York dissent:

The power of the courts to review legislative action in respect of a matter affecting the general welfare exists only "when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law."

Doesn't ObamaCare fit into that category?


Now why would Boesche say that, we get a clue
here from John Drew;

Thomas Collins

Frequently, law schools do not teach that the US Constitution must be studied and interpreted in a manner showing a good faith attempt to actually apply the text and structure of the document. There is very little reading of the Constitution as an entire document. Part of the course is degraded philosophy (for example, it is not unusual for the teacher or the textbook writer to pontificate on the notion that in determining intent, one must keep in mind that there are different levels of generality of intent; however, no serious effort is given to apply this doctrine in the context of interpreting the organic document of a liberal republican body politic). I know of only one school that requires a course giving serious attention to the historical background of the Constitution, that being George Mason School of Law. Perhaps there are a few others I am not aware of.

Much of a Constitutional law course is simple intellectual masturbation concerning judicially invented doctrines that themselves may bear little faith to the Constitution. Take a look at Roe v. Wade, Doe v. Bolton and Lawrence v. Texas, for example, to gain an understanding of how SCOTUS often functions in the privacy area (which is, basically, that the mores of the senior class of Harvard and Yale and the NY Times editorial board are applied as the standard by which society has to function in legislating on social issues). There is litttle awareness among students of pseudo-elite law schools that their strongly held policy views don't necessarily equate to principles that should be incorporated into constitutional decisionmaking. There hasn't been such awareness in a long time. Certainly at the time Obama attended law school the pseudo-elite law school karma was that just about any type of fashionable social view could serve as the basis of constitutional decisionmaking.

I am actually understating, in my above comments, the degradation of legal reasoning that occurs in many constitutional law courses in so-called national law schools. You almost have to hear it to believe it.

Obama is a product of this system. His expressions on constitutional law are no more ignorant than those of Dahlia Lithwick or many other current or former law students taught in this manner.


TomB@111:57-- no that's not correct. Lockner was NYState child labor law that was based on NYState's sovereign police power. Justice Harlan's LOCKNER dissent became the accepted 14th Amendment jurisprudence 30+ years later, when the SCOTUS adopted the 'rational basis' test regarding STATE police power laws (and FEDERAL Laws that are properly based on US Const enumerated powers.)The Obamacare statute WOULD pass muster under a rational basis test-- BUT-- that's not the issue in the litigation. The issue is whether Obamcare was grounded in an enumerated power of the Congress -- to wit the Commerce Clause. State Legislature can adopt any rational law (so long as it does not invidiously discriminates and violate equal protection) Congress has no such sovereign police power, it has only the enumerated powers the People gave Congress in the Federal Const. So each state can adopt its own Obamacare (Mass DID) the Congress had no power to pass Obamacare even if it is a 'rational law'.


I think the 5th circuit judge was out of line in asking for the brief due in an hour, as much as I love the fact that they did. It is a judge stepping up to do the job the media won't, (and perhaps another tea party moment).

What surprises me is how much traction it has gotten. I truly would have expected the administration and Justice and everyone else to simply poo poo the request.

It's not like the president hasn't said stuff equally as wrong and unconstitutional in his term; he lies constantly and gets away with it every time.

So what is different? I simply don't see this massive change in heart by the public.

clarice feldman

There's something to be said for that, TC, but it goes beyond the Constitution to statutory law. My husband and I had as our first legal jobs under the then Honors program, writing and arguing appellate cases--he for the DoJ and I for the NLRB. Almost all the other participants in these programs were from the Ivy League law schools. Shortly after starting work, the most difficult of the cases handed out to newbies were on OUR desks..Why? Because the others tried to begin with an exigesis of the law beginning with the Magna Carta and spanning the globe--i.e., airy fairy B.S.-- and we began with the facts and law at hand.

Part of that, I'm sure is that the best graduates of those schools had taken positions in private firms and we had less stellar grads who got into the honors program because they went to those schools which didn't rank for employers while our school the Univ of Wis did rank its students and didn't treat them all as the coming of another legal genius.

clarice feldman

Jane--what is different? The obvious attempt to delegitimize the courts and create disrespect for their rulings.


Clarice@12:14-- bingo. 'Bam may be dumb as a post, but from his SouthSide ChiTown days, he knows political power and intimidation. I'll give him that.


Lockner/14th Amendment Analysis-- there's a lot confusion about the constitution-- as Ezra Klein says it is a confusing document and like over 100 years old.


TC-well said. Con law these days should be called social engineering and policy justifications using Constitutional frameworks.

The elite schools at all levels have been invaded under an assumption this is where tomorrow's elites will come from and these are the values and attitudes we want guiding the next generation. Nothing accidental about it.

Melinda-does newton have a daughter who is now on faculty of hls I think? Her name has come up a few times.


One has to doubt anything that comes from the AP


[Obama is] the Mr. Tumnus of American politics, the gentle forest faun of Narnia

Cloven hoofs, horns, tail...yeah, there's definitely something going on there.


You could say that, rse;

Thomas Collins

Some of what you noticed might be what you described in the second paragraph, clarice. Some of it might be that the Ivy students just weren't that skilled in writing and analysis and perhaps hadn't received proper teaching. But I'm betting a substantial part of it is attributable to the intelligence, rigor and energy you and your hub applied to your jobs.

Keep in mind that the Honors appellate advocacy programs at the federal agencies, especially DOJ and NLRB, attract motivated and bright students, so I'm sure the Ivy League grads were of the highest quality. You and your hub probably received the difficult cases because of your demonstrated ability.

Rob Crawford

"In Boesche's European politics class, Sulzer said he was impressed at how few notes Obama took. "Where I had five pages, Barry had probably a paragraph of the pithiest, tightest prose you'd ever see.... It was very short, very sweet. Obviously somebody almost Clintonesque in being able to sum a whole lot of concepts and place them into a succinct written style."

How much text does it take to repeat "white skin privilege" over and over?


The obvious attempt to delegitimize the courts and create disrespect for their rulings.

That's not really new. Look at Justice suing states in retaliation and the WH refusal to obey subpoenas and a million other things. I fully expected we at JOM to be outraged over Obama's remarks about the court, but it's not like he hasn't done it before, including at the SOTU a couple of years ago.

So is it just one judge standing up or is it more? Given the run back by the administration - something we certainly didn't see after his stupid remarks on Citizen's United, something is different.


RobC-- fantastic snark.
PS: how could we expect 'Bam to have taken notes when he had to devote so much time figuring where to score his next bag of weed.

Melinda Romanoff

Martha Minow, rse.

Melinda Romanoff


I made note of this last night. The slip by iBama was a bit too close to the mark.


The 5th Circuit includes Friedman, who slapped down the moratorium, so it's not unreasonable to show their work.


LUN is one reason martha was on my radar screen.

Tom Bowler


Thanks for explaining. I hope the Court agrees with you that "...the Congress had no power to pass Obamacare even if it is a 'rational law'.


Hey Tom B, so nice to see you back here!

I dunno Mel, no one cares what Obama does, but now they do? It's not like he hasn't been this big of a threat since day one.


People tend to underestimate Obama when he starts spewing on legal matters, due to the fact that he's a liar and not that smart. But go back to that 2001 "charter of negative liberties" radio interview.

He didn't need a teleprompter to get his commie points across quite articulately. He needs one to keep him from doing so.

MODERATOR: Good morning and welcome to Odyssey on WBEZ Chicago 91.5 FM and we’re joined by Barack Obama who is Illinois State Senator from the 13th district and senior lecturer in the law school at the University of Chicago.

OBAMA: If you look at the victories and failures of the civil rights movement and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples. So that I would now have the right to vote, I would now be able to sit at the lunch counter and order and as long as I could pay for it I’d be okay.

But the Supreme Court never ventured into the issues of redistribution of wealth and sort of more basic issues of political and economic justice in this society. And to that extent as radical as people tried to characterize the Warren court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the Constitution, at least as it’s been interpreted, and the Warren court interpreted it in the same way that generally the Constitution is a charter of negative liberties. It says what the states can’t do to you, it says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf. And that hasn’t shifted. One of the I think tragedies of the civil rights movement was because the civil rights movement became so court focused, I think that there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributed change and in some ways we still suffer from that.

MODERATOR: Let’s talk with Karen. Good morning, Karen, you’re on Chicago Public Radio.

KAREN: Hi. The gentleman made the point that the Warren court wasn’t terribly radical with economic changes. My question is, is it too late for that kind of reparative work economically and is that that the appropriate place for reparative economic work to take place – the court – or would it be legislation at this point?

OBAMA: Maybe I’m showing my bias here as a legislator as well as a law professor, but I’m not optimistic about bringing about major redistributive change through the courts. The institution just isn’t structured that way.

You just look at very rare examples during the desegregation era the court was willing to for example order changes that cost money to a local school district. The court was very uncomfortable with it. It was very hard to manage, it was hard to figure out. You start getting into all sorts of separation of powers issues in terms of the court monitoring or engaging in a process that essentially is administrative and takes a lot of time.

The court’s just not very good at it and politically it’s very hard to legitimize opinions from the court in that regard. So I think that although you can craft theoretical justifications for it legally. Any three of us sitting here could come up with a rational for bringing about economic change through the courts.

Not a lot of stammering on the audio, either. His stammering is a function of his level of deception. He didn't stammer during his "cling to their guns and religion" speech either.


Fear not Tom-- the government doesn't contest that the Congress needed an enumerated power t pas Obamacre, however the gov't claims that the Commerce Clause is virtually plenary power for the Congress to do virtually thing-- eat you broccoli TomB!!


Ex@12:44-- interesting point. I think i said before that while he's ignorant about most things 'Bam is very knowledgable about political power and intimidation. So yes, I would expect him to be very articulate about 'stickin' it to the man.'


Lawyers - what's your take on this excerpted comment from an appellate lawyer posted Hotair?

"I’ll give you just two recent examples, where appellate courts have done like the Fifth Circuit did here. First, when the Obama Administration announced its decision to not defend DOMA even while it continues to enforce DOMA, several judges in DOMA-related cases (and a few in barely-related cases) demanded that DOJ explain. Those demands for explanation came from both Republican- and Democrat-appointed judges. Second, after months of the Administration attempting to push its “prosecutorial discretion” policy with respect to aliens in removal proceedings, the Ninth Circuit finally fed up with the apparent collision of the Administration’s announced discretion policy and the actual prosecutorial decisions of DHS, demanded in five test cases that DOJ explain what the discretion policy actually entailed and what that means for the Ninth Circuit’s cases. So this happens and it’s not the first time for Obama’s Administration."



Well he's basically cribbing Bell, from Faces
and other places.

Melinda Romanoff

Interesting link, rse.

Are we human?

Obama is a dancing boy.


AliceH-- I am usually on the receiving end of sarcasm from liberal judges, so I think it best that judges maintain appearances of impartiality, and not 'pick on' lawyers whose clients or cases the judges don't like. I will say this though-- the 5th Cir was far more within its rights here to take on a tyranical executive.


AliceH-- one more thing-- the 5th Cir and all fed judges are within their rights to scrutinize the 'Bam administration after the spectacle of 'Bam egging on his Dem pissant buddies in Congress when he attacked the SCOTUS United Citizens decision in his SOTU speech. What a disgusting display, and the SCOTUS members had to sit there and passively take it (well OK Alito was so shocked he mouthed 'that's not true'.) Fed judges should give no deference to this thug administration.


So the 3 page single space response is out and it sounds like they are saying that the court better mind its business and do what congress says, even while it admits the court has the authority. Same old double speak.


Seems to me the 5th circuit asked a legitimate question.
Before them was a DOJ lawyer whose ultimate boss had seemingly just questioned their jurisdiction in deciding cases.
Why shouldn't they ask for a clarification on just exactly what the DOJ's actual position is? Aren't they entitled to know?
Seems no different than Kennedy et al asking for the SG to clarify how they could argue the fine is a tax one day but not another.

Cecil Turner

The Fifth Circuit is no more correct to assert a power over the Executive than Obama is to tell SCOTUS how to do its job. But no less, either.


Wow - Carol Gilligan (from rse link)! I had to read "In a Different Voice" for a class a long long time ago(It was called Madness in Something, Women, and the Arts).

I have to say, that book was a real eye opener for me. I broke my rule about writing in books, because I had so many specific objections to make and logical flaws to point out I couldn't keep them all straight otherwise. I credit that book for triggering my first conscious awareness that I might in fact have always been a conservative.


alice-I won't tell you which other person I combined in that search but there is a uniting of many troubling ideas there.

Common penumbra I suppose. Which makes it all the more interesting.

I think it is martha nussbaum who mentions gilligan a lot.


rse. I was just shocked to even recognize a name -- it was so long ago and my recollection was she wasn't really all that impressive as a researcher, it surprised me that she is still "out and about". Also, that was sort of a one-off class for me to meet some "diversity" requirement, so well off my beaten path. I think I did get an 'A', though :-)

Thanks, NK, for the feedback. I agree about disliking snarky justice - was really wondering more about the "unprecedented for a court to do this!" comments, since it apparently is not even close to being a first.


This link has a further link to Holder's letter. Check out the last sentence of Holder's letter-- every syllable of that sentence is a lie.


sorry here's the link:


AliceH-- 'unprecedented' see the 1:31 link with Holder's letter, of course 'Bam was full of it when he said that.

Old Lurker

NK, have not had a chance to read the letter yet, but the headline news is that Holder states that the court indeed has the right to review the constitutionality of laws.

Am I the only cynic who thinks "review" does not mean "reject"?


OL-- points 1 & 2 of the Holder letter are an uncontroversial (IMO) recitation of the right of Judicial review of Congressional action. Point 3 is blah blah blah, the Congress acted lawfully in Obamacare. That's advocacy, that's fine. The last SENTENCE says 'Bam's statement about the SCOTUS was completely consistent with all 3 points of Holder's letter; that is a bald faced lie.

clarice feldman

Yes, NK

Old Lurker

Thanks NK


NK - Wasn't referring to Obama at all. I was talking about comments in this thread that were suggesting that a CIRCUIT COURT JUDGE issuing such a requirement to the DOJ is unprecedented. I posted the comment from an appellate lawyer who said "not unprecedented - here's 2 examples of other JUDGES requiring the DOJ to respond with statements". But it's fine - there's 2 more new threads and I'm moving on.


AliceH OK got it--

I've seen state judges and Fed District Court judges instruct government lawyers to represent for the record government policy, but I admit I never heard of anything quite like this in an appellate argument.



I had to read Gilligan in college and even though at that time I considered myself a liberal, I thought she came off like a total nutjob.

Tom Bowler

Thanks for the nice welcome back, Jane.

NK, I like broccoli, but I fear anyway.

Thomas Collins

Tom Bowler, glad to see you back here. Don't worry about the broccoli. Even if ObamaCare is upheld, Congress won't have the power to pass legislation forcing us to eat broccoli. They'll just have the power to fine us for not buying what they decide are the politically correct foods (or any other politically correct product that is a fad of the elite at the time the legislation is under consideration).


TomB/TomC-- let's hope Justice Kennedy doesn't like broccoli.

Tom Bowler

Thank you. TC. I'm glad to be back.

NK, I'm wondering if Kennedy and others on the court are riled enough at Obama's "unprecedented, extraordinary" comment to emphatically assert their authority (that he questions) by tossing the whole thing. I can dream.

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