Most of you have heard by now how Republican 5th Circuit Judge Jerry Smith expressed his “concern” over remarks made by the President in regard to the Supreme Court’s consideration of the Affordable Health Care Act by ordering the Justice Department to submit a three page, single-spaced brief on the concept of judicial review, demanding to know if Attorney General Eric Holder felt federal judges have the authority to strike down federal laws. Even though this case is a separate case than the one before the Supremes and irrespective of DOJ lawyer’s, Dana Lydia Kaersvang, correct affirmative response, he did this, as Kevin Drum says, as though a “middle school teacher handing out punishment to a student because of something her father said at a city council meeting the night before“. Here’s the rub: The case Judge Smith is a part of focuses on a Medicare aspect at physician-owned hospitals, not the broader constitutional issue before the Supremes. But hey, how boring is that? Lets not let that get in the way of expressing his political beliefs.
Judge Smith ordered the DOJ to affirm that the Attorney General does, in fact, recognize the authority of the federal courts, through unelected judges, to strike acts of Congress or portions thereof, in appropriate cases. He said “It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.” But, as the not exactly liberal ALLAHPUNDIT over at Hot Air pointed out, the President never actually said the Supremes lacked the juice to strike down laws. His entire point was that its been a long, long time since the Supremes ruled on a case involving commerce. And it was a reminder to the Supremes that the last two landmark cases over the past two decades involving commerce, a gun control case and the Violence Against Women Act, didn’t really involve commerce. Ah, the irony. Because this is precisely the type of “judicial activism” of the sort President George W. Bush warned about when he said unelected judges legislating from the bench represented “threat to our democracy.” One might think the good Judge might recuse himself seeing as 28 U.S.C. § 455 specifically states – “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Like that’s going to happen.
In his response, Attorney General Eric Holder correctly points out that Acts of Congress are “presumptively constitutional” and the Supreme Court itself has stressed that presumption in regard to Acts of Congress is strong. That said, it has not been uncommon for the Executive Branch to weigh in on issues before the Supremes, while at the same time, recognizing and respecting the Supreme’s authority to engage in judicial review. And that” respect for coordinate branch of government” forbids “striking down without a clear showing”. Which is what the President said. But let us step back a moment and ask ourselves what was so outrageous that a federal Judge brought politics into the court? What did the President say that has not been said before and by WHOM? Some examples:
“a Gingrich administration will reject the theory of judicial supremacy and will reject passivity as a response to Supreme Court rulings that ignore executive and legislative concerns and which seek to institute policy changes that more properly rest with Congress.””
- Pg 3 of the Gringrich 21st Century Contract with America
- Sen. John Cornyn (R-Texas) April 5, 2005
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.
- President George W. Bush November 15, 2007
The irony, as Jonathan Bernstein explains, 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.”
Political ole lady