Sen. Chuck Grassley was on quite the roll of idiocy yesterday. First, he treated the Senate floor and C-SPAN2 watchers to an embarrassingly racist jeremiad against the Asian-American Goodwin Liu, President Obama's now-failed nominee to the Ninth District Circuit Court.
But that wasn't all. Grassley, of course, railed against Liu as an "activist" judge, one who would try to make policy from the bench. Watch:
Another problem I have with [Goodwin Liu's] statement is the portion that quote "the court of appeals is where law is made." We have heard this view before. While serving as a circuit judge, Justice Sotomayor stated that the court of appeals quote "is where policy is made." Now I understand that there are elements of our society who wish this were the case. Those who can't get their policy views enacted through the legislative process, as our Constitution requires, often turn to the courts ? but I flatly reject that notion. The Constitution vests legislative power in the Congress, not the courts. Judges are simply not policymakers.
ThinkProgress's Ian Millhiser points out the rather awkward position this puts Grassley in vis-a-vis the Affordable Care Act and the court cases Republicans have brought attempting to have it overturned. Remarkably, Grassley is participating in at least one of these cases, having signed an amicus brief in support.
There is something delightfully retro about Grassley?'s statement. As he reminds us, conservatives thought as recently as 2009 that an effective messaging strategy was to feign umbridge at the very idea that judges might play a role in shaping the law....The biggest problem with Grassley's anachronistic use of this two year-old talking point, however, is that it unambiguously and unequivocally disavows the GOP?s single highest constitutional priority?getting the courts to overrule the democratically enacted Affordable Care Act by any means necessary. The GOP desperately wants to repeal this law but it cannot, in Grassley's words "get th[is] policy view[] enacted through the legislative process, as our Constitution requires," so they have turned to a legal theory which cannot be squared with nearly two centuries of precedent.
"Delightfully retro," or not terribly bright, take your pick. It's not surprising that the nuances of the argument Grassley was making apparently didn't occur to him. But it's just one more indication that judicial activism has always been in the eye of the beholder.
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