‘I find all of this a bit incredible’

Updated
 

We talked earlier about Judge Jerry Smith, a Republican appointee on the 5th Circuit Court of Appeals, throwing a bizarre political tantrum on the bench yesterday, assigning childish homework to the Justice Department. TPM noted that “even conservatives are concerned that the circuit court judges stepped out of bounds Tuesday – and made Obama’s point about judicial overreach for him.”

Brian Fitzpatrick, a professor at Vanderbilt University School of Law and former clerk to Justice Antonin Scalia, put it this way: “I find all of this a bit incredible.”

Prof. Fitzpatrick, you’re not the only one. Even some on Fox News think Smith went too far.

It’s worth remembering, though, the irony of the underlying criticism here. Judge Smith, like other Republican players this week, has been trying to make the case that President Obama is “attacking” the federal judiciary. He’s not, but that’s the GOP’s new talking point. Smith isn’t sure if Obama even supports the concept of judicial review.

The irony, as Jonathan Bernstein explained, is that “a major plank in the GOP platform for the last few years has been to strip the federal courts of jurisdiction over entire areas of federal law.”

Newt Gingrich is making this a major portion of his campaign right now. Another onetime major presidential candidate, Rick Perry, has vowed to disregard negative Supreme Court rulings. […]

In other words, there really is a current problem with one political party promoting radical actions to destroy judicial review, and it isn’t the president’s party. When Obama threatens to ignore a negative ruling from the court or to include (as Gingrich says he would) an “exclusionary” clause in bills in order to supposedly make them non-judiciable – neither of which have happened yet – then we have something to talk about.

Quite right. In fact, we can go even further with this.

My friend Kyle Mantyla highlighted President George W. Bush’s remarks to the Federalist Society in 2007, and the Republican’s warning that unelected judges legislating from the bench represented a “threat to our democracy.”

“When the Founders drafted the Constitution, they had a clear understanding of tyranny. They also had a clear idea about how to prevent it from ever taking root in America. Their solution was to separate the government’s powers into three co-equal branches: the executive, the legislature, and the judiciary. Each of these branches plays a vital role in our free society. Each serves as a check on the others. And to preserve our liberty, each must meet its responsibilities – and resist the temptation to encroach on the powers the Constitution accords to others.

“For the judiciary, resisting this temptation is particularly important, because it’s the only branch that is unelected and whose officers serve for life. Unfortunately, some judges give in to temptation and make law instead of interpreting. Such judicial lawlessness is a threat to our democracy – and it needs to stop.”

Given Obama’s mild nudge this week, do Republicans now consider this an “attack” on an independent judiciary, and evidence of Bush’s autocratic tendencies?

Indeed, throughout the Bush era, Republican leaders threatened to undermine the power of the federal courts. In one jarring instance, Sen. John Cornyn (R-Texas) went so far as to say judges who are the victims of violence may bring the attacks onto themselves with liberal rulings.

Remind me, were there center-left appeals court judges assigning Republicans homework assignment at the time?

Judiciary

'I find all of this a bit incredible'

Updated