Rush Limbaugh again misrepresented remarks made by President Obama to claim Obama has said that the Supreme Court “hasn't done enough on redistribution.” In fact, Obama actually said courts "are poorly equipped" to "bring about economic change."
During the June 3 edition of Fox News' Hannity, nationally syndicated radio host Rush Limbaugh again misrepresented remarks made by President Obama to claim Obama has “has said in many occasions that the [Supreme Court] needs to take -- it hasn't done enough on redistribution; it needs to use empathy over the law.” Similarly, on October 27, 2008, Limbaugh misrepresented Obama's January 18, 2001, interview on Chicago public radio station WBEZ to falsely suggest that Obama advocated economic “redistribution” through the courts. In fact, Obama actually said that while legal scholars “could come up with a rationale for bringing about economic change through the courts -- I think that, as a practical matter, our institutions just are poorly equipped to do it” [emphasis added]. Indeed, earlier in the interview, Obama stated: “You know, maybe I'm showing my bias here as a legislator as well as a law professor, but, you know, I'm not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn't structured that way.”
In addition, Limbaugh's claim that Obama has said the Supreme Court “needs to use empathy over the law” is also a misrepresentation. Conservatives have repeatedly cited Obama's May 1 statement that “I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving as just decisions and outcomes” to claim that Obama was seeking a justice who shows “empathy” rather than a commitment to follow the law. But Obama actually said his nominee will do both. Indeed, in the sentence following those May 1 remarks, Obama said: “I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role.”
From the January 18, 2001, broadcast of the WBEZ's Odyssey program, “The Court and Civil Rights” :
GRETCHEN HELFRICH (host): Let's talk with Karen. Good morning, Karen, you're on Chicago Public Radio.
CALLER: Hi. The gentleman made the point that the Warren Court wasn't terribly radical. My question is with economic changes. My question: Is it too late for that kind of reparative work, economically, and is that the appropriate place for reparative economic work to take place?
HELFRICH: You mean the court?
CALLER: The courts, or would it be legislation, at this point?
OBAMA: You know, maybe I'm showing my bias here as a legislator as well as a law professor, but, you know, I'm not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn't structured that way.
You know, you just said -- look at very rare examples wherein, during the desegregation era, the court was willing to, for example, order, you know, changes that cost money to a local school district. And the court was very uncomfortable with it. It was hard to manage, it was hard to figure out. You start getting into all sorts of separation of powers issues, you know, in terms of the court monitoring or engaging in a process that essentially is administrative and takes a lot of time.
You know, the court's just not very good at it, and politically, it's just -- it's very hard to legitimize opinions from the court in that regard. So, I mean, I think that, although, you can craft theoretical justifications for it legally -- you know, I think you can, any three of us sitting here could come up with a rationale for bringing about economic change through the courts -- I think that, as a practical matter, our institutions just are poorly equipped to do it.
SUSAN BANDES (DePaul University law professor): I don't necessarily disagree with that, but I think it also depends on -- much of the time what we see the court doing is ratifying the status quo, and, in fact, the court makes redistributive decisions or distributive decisions all the time -
BANDES: -- and it -
OBAMA: But, but, but -
BANDES: Let me give you an example, which is that the court considers whether it's OK to take a program, a federal Medicare program that provides -- you know, that recompenses people by insurance for every medical procedure they can have except abortion. And it upholds that -
BANDES: -- and says we can except abortion from that. Well, that's a decision about what kinds of subsidies we're willing to uphold and what we're not.
OBAMA: Although, typically, I mean, the court can certainly be more or less generous in interpreting actions and initiatives that are taken by the legislature, but in the example of, for example, funding of abortions or Medicare and Medicaid, the court's not initiating those funding streams. I mean, essentially what the court is saying is, at some point, OK, this is a legitimate prohibition or this is not. And I think those are very important battles that have to be fought, and they do have a distributive aspect to them.
From the June 3 edition of Fox News' Hannity:
LIMBAUGH: If -- and I'm speaking for me personally -- if I learned, if I could be assured, that she is actually a pro-life person, and does think that Roe versus Wade is bad constitutional law, and if she would rule on the right side on the life issue, I might look past this racism, even deal with that. But that's something very, very important to me, and she could be stealth in that regard. And I know that -- well, there's no record. Normally, most liberals, they love to tell you how pro-choice they are, and abortion -- she doesn't have any of that.
SEAN HANNITY (host): She is a reflection of Obama's racial identity.
LIMBAUGH: Absolutely. I think Obama wants his mirror image on the court. He wants a radical on the court. Obama talks about the Constitution in terms of he's constrained by it, and in numerous speeches, he's said Al Qaeda not constrained by the Constitution. He has referred to the Constitution as a charter of negative rights. Now, when you and I hear that -- what, how in the world can the Constitution be negative?
To him, the Constitution doesn't spell out what government can do. The Constitution limits government. He doesn't like that. I think he want -- and he has said in many occasions that the court needs to take -- it hasn't done enough on redistribution; it needs to use empathy over the law. He wants people on the court who will make policy. She is -- that's why I think the hearings on Sotomayor ought to be full bore -- whether she gets confirmed or not -- full bore -- find out who she is, all about her, because we'll learn and be able to inform the American people who Obama is. That's key.
HANNITY: But it is interesting because that term “racist,” “racial” is radioactive. But -- and [Sen.] Chuck Schumer [D-IL] said -- he made the comment that you do so at your own peril if you go after Judge Sotomayor. And I found that comment pretty interesting, 'cause I'm thinking, well, that didn't stop you and your fellow Democrats from going after Miguel Estrada. Remember the -- he's a Latino memo -- or Clarence Thomas or even Alberto Gonzales.