Judges 1, Obama 0

Three years in power and the Obama administration still, occasionally, picks a fight that it can’t win. Conservatives are quite good at shifting the Overton window and getting the respectable political/pundit class to discuss some previously forbidden idea. Democrats: Less good at this. Our current example is Obama’s decision to say that it would be “unprecedented” for SCOTUS (“unelected judges”) to strike down the health care law.

“Unelected judges” is language that conservatives often use to talk about robed liberals who legalize gay marriage. They get away with it. Obama did not. Reporters jumped on this immediately; when judges from the 5th Circuit demanded a legal explanation of what Obama meant, reporters jumped again. Here are just some of the questions that went to a sorta-prepared Jay Carney yesterday.

Do you have any response to a federal appeals court judge in Texas, Judge Smith, who criticized the President yesterday for his remarks about the Supreme Court and its power to overturn legislation, and has asked for a letter from the Justice Department affirming the federal courts’ ability to do that?

Some of the – the President’s remarks about the health care case in the Supreme Court have been interpreted as challenging or putting pressure on the Court ahead of the decision.  Can you speak to that, and why not just allow the Court to reach a decision and then –

Does the administration view the Fifth Circuit’s request as intemperate?

On the Supreme Court – just one more question on the Supreme Court and the President’s comments Monday.  Does he regret using the word “unprecedented”?

Eighty years of precedent you keep talking about, but Republicans are pointing to I think it’s 159 different times in the history of America where the Supreme Court has decided that something is not unconstitutional [sic] – obviously, not all of those times involving the Commerce Clause, which is the –

Today, the Justice Department announced a response to the 5th Circuit.

“The power of the courts to review the constitutionality of legislation is beyond dispute,” said the letter, signed by Attorney General Eric Holder.

It added that the Justice Department “has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.”

What was the Overton shift? Was it the president making it safe to criticize judges? Or was it the judges getting the executive branch to respond to their attack?