Tuesday, April 03, 2012

And you thought Scalia jumped the shark last week

Dig this from Judge Jerry Smith of the Fifth Circuit:
In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom. * * *

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick--both Republican appointees--remained silent, the source said.

Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don't have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama's comments yesterday about judges being an "unelected group of people."
Whoa. Somebody needs to quit reading FoxNews.com in his chambers. (H/t.)

... Found that link at a blog thread, from which I must quote this comment:
Judge Smith pwned Obama! Ha! Judge Smith now rulez the internet! He is now the greatest internet troll in Article III history.
... More on this story:
Judge Smith's ultimatum calls for U.S. Attorney General Eric Holder to send him a three-page, single-spaced letter by noon Thursday addressing whether President Barack Obama's recent public statements that the PPACA should be upheld signal a belief that the judiciary does not have the right to overturn a federal statute on constitutional grounds.
This has an April Fool's quality - how can the court require a three-page single-spaced letter? Is Smith senile? Did the rest of the panel sign off on this?

... All PACER has is a clerk letter:
Dear Ms. Kaersvang:
As directed today, the panel has requested a letter referencing oral argument questions. The letter is to be no less than three pages, single spaced, and is due by noon on Thursday, April 5, 2012.

... Orin Kerr calls this report, if true, "extraordinarily embarrassing to the federal judiciary." Word.

... Commenters at his post note that the court neglected to specify a maximum font size, so the three pages should consist entirely of "YES," one letter per page.

... Balkinization: "In response to the President's comments about the Affordable Care Act yesterday, Judge Smith of the Fifth Circuit decided to beat up a lawyer for the Government." Yep.

... Audio here (haven't listened; am told it's around 18:00 mark). Partial transcript:
SMITH, J.: Let me ask you something a little bit more basic. Does the DOJ recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities.

A: Yes your honor, of course, there will have to be a severability analysis.

Q: I am referring to the statements by the President from the past few days, to the effect .. . I'm sure you've heard about it, that it's somehow inappropriate for what he termed "unelected judges" to strike acts of Congress that have enjoyed . . . what he termed broad consensus and majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority, or to the appropriatness of the concept of judicial review. And that's not a small matter. I want to make sure that you are telling us, and that the DOJ do recognize the authority of the federal courts through unelected judges to strike acts of congress or portions thereof in appropirate cases.

A: Marbury v. Madison is the law . . .

Q: Okay, well I would like to have from you by noon on Thursday, about 48 hours from now, a letter stating what is the position of the AG and the DOJ in regard to the recent statement by the President, stating specifically and in detail, in refenreces to those statements, what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages, single spaced, no less, and it needs to be specific. It needs to make specific reference to the President's statement and the position of the AG and the DOJ.

[very long pause]

A: Okay, and that's our position regarding judicial review?

Q: Judicial review as it relates to the specific statements of the president in regard to Obamacare and the authority of the courts to review that legislation.

A: Yes, your honor.
"Very long pause" as in "oh my god, is this really happening or am I about to wake up?"


  1. WTF??


    The wheels are coming off entirely.

  2. Obama Derangement Syndrome.

    I am deeply disappointed if Southwick signed off on this. I think better of him.

  3. Among the uniquenesses -- I've never seen a judge order a MINIMUM length for a filing before! Auspicious for those of us gentlefolk of the bar who are paid by the word.

  4. Jerry Smith is wicked partisan. He was Party of the Right at Yale.

  5. Are these judges taking judicial notice of comments made off the record? This applies to Obama's comments and to your thread on the Tyler Edmonds case. And addressing an issue that's not before the court on appeal? I guess it goes to a basic standard of review issue, but that's pushing the bounds. I echo NMC's W-T-F?!

  6. I suspect the Dr. Phil stuff was attached to a summary-judgment motion.