A quick, further note to co-blogger John Elwood’s posts on the Obama administration’s use of signing statements. I’m sure someone has mentioned this in the comments somewhere, but over at Opinio Juris, Julian Ku has posted up video of then-candidate Obama denouncing the use of signing statements and promising not to use them. “Hypocrisy” is a strong word, but I’ll agree with Julian that it fits in this case; likewise the shrug from President Obama’s supporters that heck, all presidents do it. Yes, of course, all presidents do it. Not all presidents do it, however, after promising not to do it. It’s not the fact of doing it, it’s the fact of breaking the promise, and with the complete confidence that no one of any significance will call you on it, starting with the press. The video is fascinating viewing as an artifact from the media memory hole, and thanks to Julian for putting it up.
Update: Let me add a little more with this post from Roger Alford, also at Opinio Juris, noting Harold Koh (late of the Koh wars) on presidential signing statements, back during the Bush years.
Glancing over the comments, it seems to me that the issue is whether or not Obama, those who people his administration, the ABA, and others are consistent in applying the rhetoric and standards they proclaimed during the Bush years – including the vehemence and bluster and fury – to the Obama administration. One of the commenters suggests that to focus on “did he break his promise” is juvenile. Let me suggest that it is not. Not, at least, when breaking the promise involves no acknowledgment that the predecessor one attacked for doing the same thing might have been right, or at least as right as you.
I worked for a law partner once, as a very junior associate, in which it was pretty clear that we had made a mistake in analysis that might well cost the client lots and lots and lots of money. The partner told me that the way to deal with this situation was to look the client straight in the eye and say, “Consistent with our earlier advice to x, not-x.”
Update 2: In the comments to Opinio Juris’s post by Julian Ku, mentioned above, the always reasonable Ed Swaine responds to Julian re the charge of hypocrisy. Scroll down comments to Julian’s post to find it.
Update 3: And at comment number 15 in Julian’s post, a response by Charlie Savage of the NYT. Am I alone in finding the tone of Savage’s comment slightly, what, affronted? The unnecessary drive by shot at Glenn Reynolds at the beginning bore a certain resemblance to, I don’t know, some of the less productive comment threads here at VC! But maybe I am just reacting to the attack on Glenn – not because Glenn is beyond attack, but because this was pure snark, a little sneer before getting on with things. (I am struggling with my Good Angel and Bad Angel over whether to post a snarky thing of my own – entirely on the tone, not substance, of Savage’s comment. I don’t believe in snark. But sometimes I do give way to the Dark Side.)
Update 4: I’m pleased to note that Charlie Savage has apologized to Glenn Reynolds for the rather snarky opening of his OJ comment. It’s been added into the comments section.