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.