Political Animal


April 04, 2012 10:16 AM Black-Robed Partisans

By Ed Kilgore

I’m sure you’ve probably heard about this by now, but it’s a pretty remarkable story: a Fifth Circuit Court of Appeals Judge with the silent acquiescence of two colleague on a three-judge panel dealing with a secondary challenge to the constititutionality of the Affordable Care Act freaked out yesterday and demanded that the Department of Justice file an immediate statement repudiating what the judge chose to interpret as the president’s defiance of the power of judicial review. Here is CBS’ Jan Crawford’s updated report after reviewing audio of the incident:

In the hearing, Judge [Jerry] Smith says the president’s comments suggesting courts lack power to set aside federal laws “have troubled a number of people” and that the suggestion “is not a small matter.”
The bottom line from Smith: A three-page letter with specifics. He asked DOJ to discuss “judicial review, as it relates to the specific statements of the president, in regard to Obamacare and to the authority of the federal courts to review that legislation.”
“I would like to have from you by noon on Thursday — that’s about 48 hours from now — a letter stating what is the position of the Attorney General and the Department of Justice, in regard to the recent statements by the president,” Smith said. “What is the authority is of the federal courts in this regard in terms of judicial review?”
Smith made his intentions clear minutes after the DOJ attorney began her argument, jumping in to ask: “Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?”
Kaersvang replies yes, and Smith continues: “I’m referring to statements by the president in past few days to the effect, and sure you’ve heard about them, that it is somehow inappropriate for what he termed ‘unelected’ judges to strike acts of Congress that have enjoyed — he was referring to, of course, Obamacare — to what he termed broad consensus in majorities in both houses of Congress.”
In asking for the letter, Smith said: “I want to be sure you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts, through unelected judges, to strike acts of Congress or portions thereof in appropriate cases.”

Smith, who got his lifetime appointment from Ronald Reagan, is a conservative judge on a famously conservative circuit, notes ThinkProgress’ Ian Millhiser:

The United States Court of Appeals for the Fifth Circuit may be the most ideological court in the country. When the oil industry’s allies in Congress wanted to protect the industry from drilling lawsuits, they passed a bill trying to force those lawsuits into the reliably industry-friendly Fifth Circuit. When a high school cheerleader sued her school district after it made her cheer for her alleged rapist, the Fifth Circuit ordered the alleged rape victim to pay more than $40,000. When one of the court’s few progressives asked a series of probing questions to a prosecutor during a court hearing, Fifth Circuit Chief Judge Edith Jones yelled at him to “shut up” and asked him if he would like to leave the courtroom

But Smith’s outburst of wingnuttery was pretty remarkable even by those standards. Orrin Kerr, a contributor to the generally conservative Volokh Conspiracy legal blog, initially called Smith’s gesture “extraordinarily embarassing to the federal judiciary,” and after listening to the audio backed down on that statement only to a small extent:

[T]he tone of the questions was quite different from what I was expecting based on the story. It came off to me as earnest and genuine, not just an effort to score a cheap political point. With that said, the order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ’s position, and lower court judges deciding cases based on briefing and argument should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn’t help anyone.

For the most part, though, Smith is enjoying high-fives rather than rebukes from the conservative commentariat. And it’s all a real through-the-looking-glass moment for those of us who remember decades of conservative demonization of the federal courts and the arrogance of “unelected judges” thrwarting the popular will on civil rights, civil liberties, abortion, gay rights, and so on and so forth. Not that very long ago, the late Richard John Neuhaus, considered one of a small handful of the most important conservative thinkers in America, proposed what amounted to a right of revolution against the illegitimate “regime” of federal judges. Not every conservative agreed, but he received a respectful hearing for this extremist position.

But all previous positions, it appears, and all previous standards of appropriate behavior as well, must be abandoned when it comes to the overriding task of opposing Barack Obama. That’s fitting, given that the underlying issue here is Obama’s adoption of the individual health insurance purchasing mandate originally crafted by conservatives.

A lawyer friend of Kevin Drum’s offered him this immediate reaction to the Smith incident:

This is meant to embarrass the President. Full stop. Jesus, this is getting scary. It just seems like all out partisan war brought by the Republicans from all corners of the Government. They want to push it as far as they can. And then further. It’s incredibly destructive.
“They want to push it as far as they can” is a comment applicable to the conservative movement generally in its assault on the conventions of American law and government as generally accepted towards the end of the twentieth century. It’s just a little startling to hear its battle-cries echoed from the federal bench.
Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • TR on April 04, 2012 10:32 AM:

    The judge actually called it "Obamacare"? Is his opinion going to cite directly from Glenn Beck and Sean Hannity's shows, or just indirectly use their framing?

  • Grumpy on April 04, 2012 10:33 AM:

    And it’s all a real through-the-looking-glass moment for those of us who remember decades of conservative demonization of the federal courts and the arrogance of “unelected judges” thrwarting the popular will...

    Which is basically a paraphrase of what Obama was saying. As punishment, I order you to write a 3-page paraphrase of the DoJ position paper.

  • T-Rex on April 04, 2012 10:35 AM:

    My staunchly conservative Republican father (which by today's standards probably means flaming Marxist) is turning over in his grave. He was a judge of the county and later the superior court who was so scrupulous about not expressing any sort of partisan opinions that he wouldn't wear a campaign button even on his own time. American law wasn't always of the wild-west frontier variety, although that seems to be where it's going.

  • Anonymous on April 04, 2012 10:35 AM:


    This judge is a JERK clearly wanting 1)his name out there or 2) unaware and uneducated on HIS party bashing the Court.

  • warehousemanalive on April 04, 2012 10:46 AM:

    Guess where this 'judge' is located. That's right fans, Houston, as in - Texas. I was really discouraged after reading the article in the Houston Chronicle. Then I read the comments in the Chronicle regarding this story. Now I'm totally dejected. It's becoming more and more difficult to deny that the revolution between factual discourse and right wing opinion has begun in earnest.

  • FromTheAssociatedPressNewswire on April 04, 2012 10:50 AM:

    From the Associated Press (April 4, 2012 10:42 AM)...

    President Obama is reported to have directed Attorney General Holder to provide a written reply to Judge Smith. It is reported that the DOJ reply will be "Go F*ck yourself Judge Smith". /snark

  • Josef K on April 04, 2012 10:52 AM:

    This isn't really surprising. Depressing, yes, but not surprising.

    I'll be curious to know if the DOJ complies with the Judge's request, and if so, what the letter will say.

  • ahoy polloi on April 04, 2012 10:53 AM:

    @ TR: that's exactly what i was thinking...this judge calling it "Obamacare" instead of the ACA tells you all you need to know.

  • jcricket on April 04, 2012 10:57 AM:

    Judge Jerry Smith is just another good ol'boy who has lived off of the taxpayer dime for decades, has enjoyed federal employee health care for decades, and thinks that the federal tax dollar was meant to support people like him.

    Certainly, to him the federal tax dollar was never meant to provide basic health care for low-life scum like poor (lazy) people, or someone with pre-existing conditions
    (neglectful of own health), or someone working part-time job(s) that do not offer benefits (too stupid to work one full time job).

    Nope. And that the black man who has the nerve to live in the White House had the temerity to forget his place and publicly comment on one of most important cases the SCOTUS has ever heard just screams for whatever public humiliation that a Good ol' Boy can dish out.

    It's all about putting someone in their place.

    Their. Place.

  • Tyro on April 04, 2012 11:06 AM:

    This isn't surprising. As everyone knows, there aren't any "intellectual conservatives" anymore, in the legal or philosophical fields. Rather, the conservatives who are left have become birther, frothing-at-the-mouth, torture loving, talking-points-repeating right wing robots. It's really taken over the culture of conservatism , and justice smith is no exception. A lot of people left the republican party for the democrats, leaving behind only the most odious most morally crippled to make up what's left of the party.

  • berttheclock on April 04, 2012 11:07 AM:

    Apparently, efforts to clone en-masse Roland Freisler have been, unfortunately, successful.

  • Equal Opportunity Cynic on April 04, 2012 11:19 AM:

    @Josef K:

    My personal suggestion: a one-sentence lead paragraph "Of course the Justice Department supports Judicial Review (Marbury v. Madison)," followed by a 3 page essay on the dangers of a partisan judiciary in undermining the credibility of the courts.

    Seriously, can the DOJ just move to have this case moved based on the obvious partiality of the judges? If denied, can the DOJ appeal?

    I want to get it all the way to the Supreme Hacks so we can get them on record before the election.

  • low-tech cyclist on April 04, 2012 11:23 AM:

    "Smith, who got his lifetime appointment from Ronald Reagan..."

    That would be the same Ronald Reagan who once
    blasted the court’s most recent abortion ruling as "an abuse of power as bad as the transgression of Watergate and the bribery on Capitol Hill." ...

    This is via SteveM of Balloon Juice, and there's more juicy stuff where that came from:


  • Ron Byers on April 04, 2012 11:26 AM:

    Hey, we are talking about Texas. The rule of law does not exist in Texas, either East or West of the Pecos. Pretty near the entire state's bench and bar are fundamentally and irretreivably 3rd world corrupt.

    Texas use to be home to one of the big five law schools. You know Harvard, Yale, Michigan, Stanford, Texas. Now, not so much.

    Republicans are working hard to recreate the Texas model across the country.

  • emjayay on April 04, 2012 12:13 PM:

    I hope that WM will follow up with the lawyer's response. I suppose they could ignore the assignment, or maybe write the required essay, beginning with a recap of Marbury followed by two pages of appropriate quotes from Reagan, Bush, Gingrich etc. about activist judges and so on.

    Or will they do what lawyers are supposed to do (whatever it takes to win including eating shit) and submit a nice essay exactly as assigned?

  • TCinLA on April 04, 2012 12:14 PM:

    These southernists are "pushing things as far as they can" with the potential result that they're going to follow their great-great-great grandfathers into out-and-out treason. If so, perhaps this time we will give the South the treatment it deserved 150 years ago: the same that Rome did to Carthage.

  • estamm on April 04, 2012 12:45 PM:

    I'd have Justice write a one word response: "NUTS!". And if the judges get the historical reference, so much the better.

  • E L on April 04, 2012 12:48 PM:

    2014: Judge Jerry Smith is now the early favorite of President Romney to replace retiring Justice Ginsberg.

  • esaud on April 04, 2012 1:07 PM:

    Is this the same Jan Crawford that did the piece on CBS this morning (about 7:10 or so) about how conservatives are outraged about President Obama's SCOTUS remarks?

    After 15 second or so of what Obama said, she turned to about 15 seconds of Rush Limbaugh with his usual trash talk.

    I mean really, so Limbaugh is outraged at somenthing Obama said? Perhaps Ms. Crawford would like to highlight Limbaugh's calling the ACA "reparations for black people".

    This is really a new low in he said/she said "journalism". Ms. Crawford is pretty smart, but I guess she realizes that if she wants to stay in this high pay gig she needs to get on the "both sides" bandwagon.

  • Robert on April 04, 2012 1:40 PM:

    “I intend to go right on appointing highly qualified individuals of the highest personal integrity to the bench, individuals who understand the danger of short-circuiting the electoral process and disenfranchising the people through judicial activism.” -Ronald Reagan

    I guess Jerry Smith didn't agree with Reagan either.

  • E.Hatt-Swank on April 04, 2012 2:50 PM:

    There's one thing about this yet-another-pseudo-controversy that i don't understand. If you listen to Obama's comments about judicial activism and unelected judges, it's totally clear that he's just repeating back the accusations the right-wing has been making for years. So they're attacking him for essentially quoting .. them. And i've yet to see one of these pundit/reporter types on the TV point out the absurdity of that. Enough to drive one bonkers...

  • Mitch on April 04, 2012 3:27 PM:


    Remember: IOKIYAR

    No matter what you're talking about. It's okay if you're Republican. If Dems do/say/think it, then it's Islamo-fascist-pinko-commie-unAmerican-liberal-biased-ungodly treason.

    This covers everything. Everything.

    Millions of Americans buy into it, and the media supports it. Never forget, IOKIYAR. In all situations, it is the One Great Truth of modern American politics.

  • Steve P on April 04, 2012 4:22 PM:

    The Fifth Circuit: The Early Years


  • Texas Aggie on April 04, 2012 5:02 PM:

    An appropriate response would be to use a robopen to write three pages worth of "I must not say anything to upset Jerry Smith."

    Why do rightwingers always come across as persnickity schoolmarms?

  • DualNature on April 05, 2012 12:42 AM:

    @warehousemanalive: Yep. Very dispiriting. I live in Houston, too, read the Chronicle article and read some of the comments. The first one was "Right on, Judge!" and it had something like 150 "thumbs up." I read a few more and that was all I could take.

  • Bonnie on April 05, 2012 4:14 AM:

    Not only are there "any 'intellectual conservatives' anymore," there aren't any conservatives who know anything about good manners.

  • exlitigator on April 05, 2012 9:22 AM:

    I wish the DOJ attorey would file a huge brief filled with Republican quotes attacking the judiciary, and then delinate under what circumstances an appleatte judge could be impeached and or sanctioned under ethical guidelins.

  • Joe Ripp on April 06, 2012 1:26 AM:

    It must have really hit home as the truth to cause so many hornets here. What President Obama did was tantamount to jury tampering. If a defendant said similar remarks to any court they would be brought up on charges. Sorry to upset your mutual admiration society here.