Associated Press
Following up our reports from earlier in the week, Attorney General Eric Holder has personally responded, in writing, to Judge Jerry Smith's hysterical demands related to President Obama's routine beliefs on judicial review.
To briefly recap, Smith, a Republican appointee on the 5th Circuit Court of Appeals, threw a bizarre political tantrum on the bench Tuesday, assigning childish homework to the Justice Department. The judge's partisan hissy fit drew criticism from the left, right, and center, with Jeffrey Toobin going so far as to call Smith's conduct a "disgrace" and an example of Republican judges "deranged by their hatred for the president."
Regardless, the 5th Circuit wanted a written response, so it's going to get a written response. As much as I would have preferred to see the Justice Department give Smith a transcript of Obama's clarification and a copy of Marbury, Holder actually took the homework assignment seriously, and prepared a detailed response, which has been posted online (pdf).
The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed and was accurately stated by counsel for the government at oral argument in this case a few days ago. The 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. [...]
At no point has the government suggested that the Court would lack authority to review plaintiffs' constitutional claims....
Holder appears to have resisted the urge to add a postscript that could have read, "Now turn off Fox News and get back to work."
Of course, if the Attorney General had added such language, it would have been entirely understandable.
This was a tantrum based on nothing. At a press conference on Monday, Obama argued in support of the Affordable Care Act's constitutionality, and said, "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."
The phrasing may have been incomplete, but the point was hardly controversial. As Obama clarified a day later, in cases like these, the justices haven't overturned federal laws since before the New Deal. "The point I was making," he added, "is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it's precisely because of that extraordinary power that the Court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress."
That happens to be true -- the Supreme Court has not struck down a central provision of a landmark federal statute since the 1930s.
So why did Judge Smith lose his cool and play the role of a partisan activist? I suppose that's up to him to explain, but whatever his motivation, his tirade was an embarrassment to the federal judiciary at a time when the institution can least afford another setback in its credibility.
As we talked about on Tuesday, the larger concern, especially after last week's oral arguments at the Supreme Court, is that Americans may no longer have confidence that judges, especially on the right, are guided by anything other than partisan and ideological goals. Our system of government relies heavily on an independent judiciary, but some judges appear willing, even eager, to blur the line between their duties and political activism.
When Americans start to see conservative judges as Republicans, rather than just Republican appointees, the integrity of the courts suffers in immeasurable ways. It's something for Smith to think about when he receives Holder's letter, accepts its argument, and moves on to other matters.
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Holder should have asked the judge if he had a law degree and if so, to please fax him a copy ASAP.
Yeah, it makes me wonder if Juror Smith received his degree from Oral Roberts University.
Or ask him whether he graduated from Pat Robertson's Law School.
Smith should offer up his resignation from the Bench! -Kevo
He should certainly recuse himself from the case where he insisted on this ridiculous essay.
I once thought of becoming a Republican, but I couldn't pass the IQ test low enough.
Equally, " I'm trying to see things from your point-of-view, but I can't get my head that far up my ass!"
Way to be the grown-up in this situation, Mr Holder! The high road IS the best road.
That is so true. Holder and Obama, bless their hearts, are so gracious to these yahoos! As much as I would like for either of them to tell the Judge to "go get stuffed!" (or just ignore him), I can appreciate that in politely and diligently responding to that assanine request they made Smith look like a crazy old coot obsessed with waxing silly from the bench.
Holder did exactly what he need to do.
Holder did the wrong thing by not politely telling the judge he has no authority to make such a request. This will only encourage more judges to make silly requests because they want to push the AG around, particularly when these judges decide to get partisan. Holder is not accountable to the judiciary, but he reports to the president. If Holder said no, then the judge would be boxed in and forced to back down or face a direct appeal to the SCOTUS on a constitutional argument about separation of powers. The direct appeal would turn this issue into a hot potato for the SCOTUS.
Yep, Mike, I agree. It was certainly a show of professionalism, but it was wasted on the ideological child it was directed towards.
I think it's great that A G Holder at least gave Judge Smith's clerks some homework, to look up all the cases cited in his response.
"When Americans start to see conservative judges as Republicans, rather than just Republican appointees, the integrity of the courts suffers in immeasurable ways."
Too late. I lost confidence in SCOTUS years ago when Clarence Thomas was appointed despite ample evidence, presented under oath and at great personal risk and embarassment by a highly credible witness - Anita Hill - that the man is a pervert and a bully. I still believe her, and not his wide-eyed "what, who me?!!" b.s. denial.
The committee were in heaven with that little part offered by Ms Hill. Didn't you notice every member of that committee asked the same exact questions of Ms Hill while one hand was under the desk?
I didn't notice all that, but it was maddeningly obvious that the committee knew they had a small-thinking shuck and jive man on the hook who would dance any jig they told him too, when they told him to, and they were determined to seat him no matter what. Confidence in the judiciary? Please. Women would do well to pray that none of the recent fights over abortion rights and contraception ever reach this so-called "Supreme" court.
I have to think that undermining confidence in the integrity of the judiciary is a Republican goal, same as making government generally lose the confidence of the American people. If we lose confidence, then we expect nothing and respond with resignation when we get nothing. That only helps the GOP. So, from the perspective of long-standing Republican goals, did Judge Smith really foul up? Or did he in fact aid the team, as Limbaugh would have it?
President Obama is merely standing up for what is is his main domestic policy achievement since taking office. Conservatives chide Obama for "attacking" the courts when it is the GOP that has quite literally advocated armed attacks on judges and courts they deem "activist." What is he supposed to say, that his own legislation is unconstitutional? The only tragedy here is that judges are placing politics ahead of what is best for this great nation. http://www.sunstateactivist.org
You left out the best part of the letter, the closing paragraph:
"The President's remarks were fully consistent with the principles herein."
I liked that part, too. But I would have gotten a good laugh had Holder added a line inviting Smith to contact him any time he needs some more judicial clarifyin'.
Can't wait for Part Deux of GOP Fainting Spells - "How dare they use FACTS and LEGAL PRECEDENTS!!!! Edition...
Obama derangement syndrome is reaching epic proportions. I wonder if this is what those who foresaw an apocalypse had in mind - blood running in the streets from burst veins. Your move, Rush.
Where was this idiot judge Smith when Newt Gingrich said he could dissolve federal courts at will as president, and that he would willingly arrest any federal judge who ruled in a way that he didn't like????
I wonder why no one brings up this rather embarrassing comparison?
Big difference jjm! Say what you want, but the court needs to rule on the unconstitutional mandates of Obamacare! Don't you agree?
What unconstitutional mandates are there and how are they unconstitutional?
You are aware that the way the health care law is written the "mandate" is merely a lack of a rebate tax deduction that you'd get while filing if you didn't have health insurance, yes? It, legally speaking, is written the exact same was as the rebate deal w/ renters vs. mortgage owners vs. homeowners. If you have a mortgage you get to deduct more money from your income tax than if you rent or own your home outright. This is the same way the mandate works. You are aware of this, yes?
They're unconstitutional! Duh! The courts only need to say so. It's so obvious (now that I've sucked down enough gin to float an aircraft carrier).
I'm more interested in seeing if Cap'n Murca can define "tendentious" and describe how the word characterizes his style of commentary.
Remind you of anything like perhaps Clinton derangement? I suppose you all caught Mitts speech where he accused Obama of essentially everything he himself and his party are guilty of?
There are judicial activists and they are clearly the Republican appointees. That has been clear for awhile. Federal judges should have recused themselves during the BP spill, Citizens United and of course the Affordable Care Act just to name some recent cases but they feel no responsibility to the citizens or to their oaths. Our government is corrupt through and through. When 95% + of the legislation and the court rulings are opposed by 70% of the population for over a decade but all three branches just keep plugging along unabated we are in serious denial by our leadership.
If the Supreme Court Justices would like to appear impartial, they would do well to behave that way.
Racism, sexism, tea bagger activities -- not behaviors our supreme court justices should be engaging in, and yet, there it is for all to see.
Let's not forget Richard F. Cebull, the Chief Judge of the U.S. District Court (Montana), who forwarded that racist and bestiality (just joking, heh-heh) email about President Obama's mother.
Clarence Thomas and his lovely wife...
"When Americans start to see conservative judges as Republicans, rather than just Republican appointees, the integrity of the courts suffers in immeasurable ways. It's something for Smith to think about when he receives Holder's letter, accepts its argument, and moves on to other matters."
To not see them as Republicans is a mistake. Once again, very few are seeing the viciousness with which the right at all levels and positions within society is pursuing its objectives. It's going to be too late very soon.
as an attorney, my first thought when i heard about the tantrum was "I'd hate to be counsel for Physicians." sure this looks bad for the Government's case, but given the panel Justice likely wasn't excited about their odds to begin with. Now with the pushback, it actually puts pressure on the judges to be less political.
the bigger issue, however, was hinted at in Holder's letter. the court, in its snark, didn't request this letter from both sides. it was just a punitive make-work for Justice. but it resulted in Justice getting to file a supplemental brief (while expressly stating "this is not a supplemental brief.") if you are opposing counsel, do you (a) ignore it, despite the fact it gives Holder the last word on some key substantive issues; (b) ask for the chance to respond which both looks petty and keeps the story alive? both are bad options, and Justice made the most of the opportunity. Which is precisely why they didn't just blow the order off or treat it with disdain: it was a great opportunity, dropped in their laps. They took it, and took it seriously.
SCROTUS lost all credibility with Bush v. Gore and has yet to gain it back, I think it's going to be a generation or two, if ever.
A sad commentary on how far the 5th Circuit has fallen from being in the vanguard of securing equal protection and racial justice for people during the Civil Rights Era to the present imitation of justice that protects mainly corporate interests and zygotes. Doubly ironic that the appointees of that bygone era were also Southern Republicans but nurtured in a very different tradition that was closer to Abraham Lincoln than Jefferson Davis.
Has anyone ever asked Holder what its like to nail Oprah?
BTW, whaddya mean zeitgeist, etc., has got it exactly right: DOJ used the letter brief as an opportunity to double down on its message to SCOTUS and remind it of all the previous times it had emphasized deference to Congress. In fact, it's a pretty good rejoinder to Kennedy's question as to doesn't the Administration face a pretty heavy burden here? The clear answer to that question, as Holder's letter makes clear, is no, the challengers have that burden.
Nicely done.
Steve? The judge lost his cool on the 'unelected judges' comment...and that was the President citing CONSERVATIVE COMMENTORS making that argument...
Someone might wish to inform Judge Wright that ANY Federal Justice, as with any other person serving in an elected or appointed Federal position, can be impeached for treason, bribery and high crimes and misdemeanors (has anyone ever discovered just what constitutes "high crimes and misdemeanors'?). However, the Founders, most likely because they were to have life tenures, also included another reason for removing Justices from office, and I quote:
Article III, Section 1. "...The judges, both of the supreme and inferior Courts, shall hold their offices during good Behaviour...".
Since the Founders had already stated in Article II that all civil officers were subject to impeachment for treason, bribery and high crimes and misdemeanors and since we may safely assume that those activities were not considered "good behavior" by the Founders, the logical assumption is that "good Behaviour" is a category solely applicable to the one group of civil officers not subject to either elections or the whims of patronage; ie, justices of the "supreme and inferior Courts".
The justice would still have to be impeached to be removed from the bench, but removal wouldn't automatically be followed by criminal charges, as would, or should, occur for removal for treason, etc.
Any Justice handing down partisan decisions would, it seems to me, definitely be at odds with the Constitutional requirement of "good Behaviour". Decisions such as "Citizens United", which have no foundation anywhere in the Constitution, could serve as the basis for an impeachment under this standard. As could the actions of Judge Wright which, in opinions crossing the entire political spectrum, only bring the judiciary into disrepute.
What gain is to be had in feeding the monster of hate? Will its belly burst with greed, or to see it drown by slaking its thirst, shall it grow large and sleep, or will its hunger for the blood of countless citizens yearning for the restoration of Public Trust?
What? Did you not know that Pubic Trust is not found anywhere in the Constitution, or in any law passed by Congress? The Public Trust lies only in Honorable men. When we are at loss to find Honorable men willing to serve their country before themselves, we are endangered. We can read what the Constitution says, but it gives its power only on the faith that Honorable men can represent the Public Trust. Anyone reading the empowerment or government, the words, the phrases, the conditions, the precedents, must carry the words Public Trust in their heart, to know who is was that lent this power to them.
How could the voters have so neglected the republic and now only serve the monster of hatred, feeding it by every effort?
At every turn Republicans try to go after the President with this "selective outrage" ! They really should be focusing on their brand of politics which people have been turning away from in droves !
I think the judge made the 'request' because it would raise his standing in the right wing echo chamber.
He spends so much time in the right wing fantasy world he forgot about the real world where he would not be seen in so kind a light.
Holder was smart to respond professionally and to let the world know exactly what a political hack the judge was.