Obamacare-American Bar Association Statement

President Obama's grossly misleading and inaccurate statement on the Supreme Court's judicial review of Obamacare stunned many in the legal world, including the American Bar Association, whose president, William T. Robinson III, put out this statement (via Volokh Conspiracy):

Re: President Obama’s remarks on upcoming U.S. Supreme Court ruling on national health care

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.”

We’re gratified that the president recast his remarks Tuesday. He clarified appropriately that “the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it.”

Federal judges are, by design, not elected officials. Article II of our Constitution reserves for the president the authority to appoint Supreme Court justices and all other officers of the United States with the advice and consent of the Senate. In fact, President Obama himself has offered more than 123 nominations for Article III judgeships, including two lifetime appointments to our nation’s highest court.

The legitimacy of judicial review was settled more than 200 years ago in the landmark case Marbury v. Madison, which established such review as a key safeguard of the separation of powers doctrine. The Framers of our Constitution clearly understood that an independent judiciary is critical to the maintenance of our democracy and freedom.

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.