Attorney General Eric Holder reponds to 5th Circuit

Posted by AzBlueMeanie:

On Monday, President 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."

As I previously posted, the right-wing noise machine clutched their pearls and manufactured an outrage over this "threat" to the U.S. Supreme Court.

Steve Benen reports what followed next. The 5th Circuit's Unsettling Tantrum:

[President Obama explained on Tuesday] that "The point I was making 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. But it didn't stop a Reagan-appointed judge on the U.S. Court of Appeals for the 5th Circuit from throwing a tantrum from the bench yesterday.

A federal judge on Tuesday expressed concern over President Obama's comments on the Supreme Court's consideration of the health-care law and demanded a letter explaining whether Attorney General Eric H. Holder Jr. believes federal judges have the authority to strike down federal laws.

Judge Jerry Smith, a Republican appointee on the U.S. Court of Appeals for the 5th Circuit, was part of a three-judge panel hearing arguments in a lawsuit over the Affordable Care Act when he issued his unusual demand, saying the Justice Department must submit the three-page, single-spaced letter by noon Thursday, according to a lawyer who was in the courtroom.

This is not only ridiculous, it's also an embarrassment to the federal judiciary at a time when the institution can least afford another setback in its credibility.

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Yesterday's tantrum, even by conservative standards, was pathetic. Judge Smith saw something on the news, decided to question whether the president accepts the principle of judicial review, and then assigned homework to a Justice Department attorney — complete with instructions on page length and spacing, as if the 5th Circuit Court of Appeals is now a 9th grade English class.

Well, 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. Holder responds to 5th Circuit Tantrum:

[T]he 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."

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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.

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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.