# Did Bush W, make a gaffe towards SCOTUS? **URL:** \ **Category:** Great Debates\ **Created:** [April 9, 2012, 3:23am UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225 "2012-04-09T03:23:28Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Grrr](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/grrr/32/146_2.png) [@Grrr](https://boards.straightdope.com/u/Grrr)\ **Post date:** [April 9, 2012, 3:23am UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/1 "2012-04-09T03:23:28Z")
With regards to Presient Obama’s gaffe towards the SCOTUS? I keep reading the comments on CNN. I know these folks aren’t exactly the smartest people in the world but I’ve read more than once: “The GOP never cried foul when Bush W pulled his crap with the SCOTUS.” But they never go into specifics. If true, I’d like to know what those specifics were. I’ve never been a Bush fan but his actions with the SCOTUS never pinged my radar as “Not cool”. But I digress, my memory sucks. So maybe someone can help refresh it. Thanks. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [April 9, 2012, 3:46am UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/2 "2012-04-09T03:46:17Z")
Bush railed against “judicial activism” numerous times. I don’t know if any of those times were regarding a specific case currently before the court. But Obama’s comments were referring to the longstanding whining from conservatives such as Bush. ---
**Author:** ![Koxinga](https://avatars.discourse-cdn.com/v4/letter/k/4af34b/32.png) [@Koxinga](https://boards.straightdope.com/u/Koxinga)\ **Post date:** [April 9, 2012, 4:09am UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/3 "2012-04-09T04:09:46Z")
I think the answer folks here will give you will depend on whether they draw a distinction between (on the one hand) expressing disapproval of the courts’ approach toward cases in general and _in retrospect_, and (on the other) implying if a specific decision in a specific case doesn’t go a certain way, then the court’s legitimacy should be questioned _and this while the case in question is still pending judgment_. If one accepts there’s no difference, then sure, Obama did nothing any other president hasn’t already done. ---
**Author:** ![Typo\_Knig](https://avatars.discourse-cdn.com/v4/letter/t/cdc98d/32.png) [@Typo\_Knig](https://boards.straightdope.com/u/Typo_Knig)\ **Post date:** [April 9, 2012, 5:37am UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/4 "2012-04-09T05:37:23Z")
> [@Koxinga](#): > > I think the answer folks here will give you will depend on whether they draw a distinction between (on the one hand) expressing disapproval of the courts’ approach toward cases in general and _in retrospect_, and (on the other) implying if a specific decision in a specific case doesn’t go a certain way, then the court’s legitimacy should be questioned _and this while the case in question is still pending judgment_. If one accepts there’s no difference, then sure, Obama did nothing any other president hasn’t already done. How do you get Obama questioning the legitimacy of the court based on what he actually said? ---
**Author:** ![Koxinga](https://avatars.discourse-cdn.com/v4/letter/k/4af34b/32.png) [@Koxinga](https://boards.straightdope.com/u/Koxinga)\ **Post date:** [April 9, 2012, 5:44am UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/5 "2012-04-09T05:44:23Z")
The bit about how if the Supreme Court doesn’t rule in his favor, then it’s an “unprecedented” move by a group of “unelected” judges against a “democratically elected” Congress. The implication seems pretty clear to me: the Congress has superior legitimacy over the Supreme Court by virtue of it being democratically elected, and for the latter to dare to contradict the former should cause all our monocles to pop out in shock. Frankly, I think he was confusing the Supreme Court with the House of Lords. ---
**Author:** ![Typo\_Knig](https://avatars.discourse-cdn.com/v4/letter/t/cdc98d/32.png) [@Typo\_Knig](https://boards.straightdope.com/u/Typo_Knig)\ **Post date:** [April 9, 2012, 11:35am UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/6 "2012-04-09T11:35:01Z")
Please re-read the actual words Obama said, and compare that with the nearly infinite number of quotes from Republicans - just the elected officials while in office - about “judicial activism”, “unelected judges”, the fantasy of the application of “sharia law”, etc. Add in the one-issue, under qualified people the Republicans have nominated to the Federal bench and the SCOTUS in a blatant attempt to bend the entire court system to their will. Clarence Thomas? Harriet Myers??? The ink on Chief Justice Roberts’ nomination testimony was barely dry before he treated stare decisis as one would treat a used kleenex. Even Scalia - the intellectual heart of the Reagan Court - made a major gaffe in oral arguments about Obamacare in talking about the “Cornhusker Kickback” as part of the PPACA. It was removed before passage, Ninoy. It was in all the papers. I guess the actual text of a document is only important to you when your mood is right. :rolleyes: Yes, one party has been attacking the legitimacy of the court system for decades - the Republican Party. One comment from a Democratic POTUS in favor of his signature issue does not change that, particularly since Obama did not attack the court’s legitimacy in what he said. You can read better than Scalia - it isn’t that hard. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 9, 2012, 2:03pm UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/7 "2012-04-09T14:03:13Z")
> [@Typo\_Knig](#): > > Please re-read the actual words Obama said, and compare that with the nearly infinite number of quotes from Republicans Please reread the OP where he asks for specific examples of things George W. Bush said while in office about the SCOTUS. Got any? I’m not saying there aren’t-- I really don’t know. But that is the question. ---
**Author:** ![Boyo\_Jim](https://avatars.discourse-cdn.com/v4/letter/b/87869e/32.png) [@Boyo\_Jim](https://boards.straightdope.com/u/Boyo_Jim)\ **Post date:** [April 9, 2012, 2:19pm UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/8 "2012-04-09T14:19:32Z")
I believe **Typo Knig** was replying to the immediately preceding post from **Koxinga** , not to the OP. At least it makes a lot more sense in that context. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 9, 2012, 2:25pm UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/9 "2012-04-09T14:25:47Z")
> [@Typo\_Knig](#): > > Harriet Myers??? Yes, and she was… er… > [@](#): > > …removed before passage… Kind of funny that in the same post you would hold up Harriet Miers as something to legitimately gripe about, and chastise Scalia for commenting on a part of the bill that was removed before it passed. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [April 9, 2012, 2:37pm UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/10 "2012-04-09T14:37:20Z")
Didn’t Bush make recess appointments to the court? You know, that terrible, terrible thing Obama should never be allowed to do? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 9, 2012, 2:45pm UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/11 "2012-04-09T14:45:48Z")
> [@Boyo\_Jim](#): > > I believe **Typo Knig** was replying to the immediately preceding post from **Koxinga** , not to the OP. At least it makes a lot more sense in that context. Yes, and I was referring to this part: > [@Originally Posted by Typo Knig](#): > > Please re-read the actual words Obama said, and compare that with the nearly infinite number of quotes from Republicans Emphasis added. Like I said, Bush may have made similar comments. I don’t remember any, although memory isn’t a good gauge. I did a quick google search and didn’t find any, but that’s not definitive either. ---
**Author:** ![Typo\_Knig](https://avatars.discourse-cdn.com/v4/letter/t/cdc98d/32.png) [@Typo\_Knig](https://boards.straightdope.com/u/Typo_Knig)\ **Post date:** [April 9, 2012, 2:57pm UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/12 "2012-04-09T14:57:16Z")
> [@Boyo\_Jim](#): > > I believe **Typo Knig** was replying to the immediately preceding post from **Koxinga** , not to the OP. At least it makes a lot more sense in that context. Yes, that was what I meant. ---
**Author:** ![Typo\_Knig](https://avatars.discourse-cdn.com/v4/letter/t/cdc98d/32.png) [@Typo\_Knig](https://boards.straightdope.com/u/Typo_Knig)\ **Post date:** [April 9, 2012, 3:02pm UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/13 "2012-04-09T15:02:32Z")
> [@Bricker](#): > > Yes, and she was… er… > > Kind of funny that in the same post you would hold up Harriet Miers as something to legitimately gripe about, and chastise Scalia for commenting on a part of the bill that was removed before it passed. Myers cost GWB credibility among conservatives - it was _that_ bad a pick. Gene Weingarten pointed out how bad her writing was. The written word is the SCOTUS’s dwfinitive means of communication. Scalia is supposed to be the smart one, but he fell down on this point. Hopefully someone other than the eeeevul Washington Post will point it out to him before he writes his opinion. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [April 9, 2012, 3:36pm UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/14 "2012-04-09T15:36:52Z")
> [@Evil\_Captor](#): > > Didn’t Bush make recess appointments to the court? You know, that terrible, terrible thing Obama should never be allowed to do? There hasn’t been a recess appointment to the Supreme Court since the Eisenhower Administration, near as I can figure. And I don’t think we will ever see another one, IMHO. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [April 9, 2012, 4:45pm UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/15 "2012-04-09T16:45:25Z")
> [@Evil\_Captor](#): > > Didn’t Bush make recess appointments to the court? You know, that terrible, terrible thing Obama should never be allowed to do? > [@Mr.Moto](#): > > There hasn’t been a recess appointment to the Supreme Court since the Eisenhower Administration, near as I can figure. And I don’t think we will ever see another one, IMHO. Bush made [recess appointments to the circuit courts](http://en.wikipedia.org/wiki/Category:Recess_appointments_during_the_George_W._Bush_administration), including Bill Pryor and Charles Pickering, but not to SCOTUS. ---
**Author:** ![ShibbOleth](https://avatars.discourse-cdn.com/v4/letter/s/848f3c/32.png) [@ShibbOleth](https://boards.straightdope.com/u/ShibbOleth)\ **Post date:** [April 9, 2012, 10:29pm UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/16 "2012-04-09T22:29:51Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Bush made [recess appointments to the circuit courts](http://en.wikipedia.org/wiki/Category:Recess_appointments_during_the_George_W._Bush_administration), including Bill Pryor and Charles Pickering, but not to SCOTUS. Recess was probably GWB’s best subject, so it does make sense that he’d make a number of recess appointments. I know I’ve seen condemnation of Obama people who supported Bush to do whatever he wished (IRL, moreso than here). ---
**Author:** ![Randvek](https://avatars.discourse-cdn.com/v4/letter/r/a6a055/32.png) [@Randvek](https://boards.straightdope.com/u/Randvek)\ **Post date:** [April 10, 2012, 12:14am UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/17 "2012-04-10T00:14:25Z")
Why on Earth would George W. Bush rail against the Supreme Court? Don’t bite the hand that installs you as President, after all. He owed them. ---
**Author:** ![David42](https://avatars.discourse-cdn.com/v4/letter/d/5f9b8f/32.png) [@David42](https://boards.straightdope.com/u/David42)\ **Post date:** [April 10, 2012, 7:05pm UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/18 "2012-04-10T19:05:26Z")
> **[Scalia mocks health care law ‘Cornhusker Kickback’ provision—that no longer...](https://news.yahoo.com/blogs/ticket/scalia-mocks-health-care-law-cornhusker-kickback-provision-205148292.html)** > > Conservative Justice Antonin Scalia suggested on Wednesday that the Supreme Court could strike the "Cornhusker Kickback" from President Barack Obama's landmark health care overhaul without having to invalidate the whole law. He was right, in a way:... “The consequence of your proposition, ‘would Congress have enacted it without this provision,’ OK, that’s the consequence. That would mean that if we struck down nothing in this legislation but the—what’s it called, the ‘Cornhusker Kickback’—OK, we find that to violate the constitutional proscription of venality, OK?” Scalia said, to guffaws from the audience." Scalia went on: “When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker Kickback is bad. That can’t be right.” Am I the only one who fails to see that this means Scalia mistakenly thought the “Cornhusker Kickback” was in Obamacare? It appears a perfectly apt issue to illustrate the idea that something in the law isn’t always all that necessary to the rest of the law–after all, if the Cornhusker Kickback was once in the law and then was taken out before passage, just how important was it to the operation of the rest of the law? Is he talking seriously about striking down the Cornhusker Kickback? Hmmm…was it raised in the court below? That’s generally a consideration… Hmmm…is venality a constitutional consideration? I can’t find anything in the quote that leads me to believe Scalia was serious about anything other than severability. ---
**Author:** ![Fuzzy\_Dunlop](https://avatars.discourse-cdn.com/v4/letter/f/848f3c/32.png) [@Fuzzy\_Dunlop](https://boards.straightdope.com/u/Fuzzy_Dunlop)\ **Post date:** [April 10, 2012, 7:15pm UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/19 "2012-04-10T19:15:04Z")
> [@David42](#): > > [http://news.yahoo.com/blogs/ticket/scalia-mocks-health-care-law-cornhusker-kickback-provision-205148292.html](http://news.yahoo.com/blogs/ticket/scalia-mocks-health-care-law-cornhusker-kickback-provision-205148292.html) > > “The consequence of your proposition, ‘would Congress have enacted it without this provision,’ OK, that’s the consequence. That would mean that if we struck down nothing in this legislation but the—what’s it called, the ‘Cornhusker Kickback’—OK, we find that to violate the constitutional proscription of venality, OK?” Scalia said, to guffaws from the audience." > > Scalia went on: “When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker Kickback is bad. That can’t be right.” > > Am I the only one who fails to see that this means Scalia mistakenly thought the “Cornhusker Kickback” was in Obamacare? Based purely on the quotations you provided, it seems perfectly clear Scalia is making an argument by analogy. Whether or not he thought the Cornhusker Kickback was in the Affordable Care Act, I don’t see how it changes the analogy he was making. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 10, 2012, 7:40pm UTC](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225/20 "2012-04-10T19:40:06Z")
> [@Typo\_Knig](#): > > Myers cost GWB credibility among conservatives - it was _that_ bad a pick. Gene Weingarten pointed out how bad her writing was. The written word is the SCOTUS’s dwfinitive means of communication. > > Scalia is supposed to be the smart one, but he fell down on this point. Hopefully someone other than the eeeevul Washington Post will point it out to him before he writes his opinion. He really didn’t. He was creating a hypothetical in response to the proposed rule that “If not for this, Congress would never have passed it.” He was offering a test of that rule. “Suppose,” Scalia essentially said, “That the bill contained that famous Cornhusker provision, because it was a necessary concession for the final vote in the Senate to allow passage. And suppose then we, the Supreme Court, struck down the Cornhusker provision because it was unconstitutionally venal, har-de-har-har. Would that scuttle the whole bill?” [Next page](https://boards.straightdope.com/t/did-bush-w-make-a-gaffe-towards-scotus/618225.md?page=2)