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Judge Demands DOJ View On Judicial Review

From an outraged (at the judge) Associated Press:

Judge upset by Obama’s comments on health care law

By JUAN A. LOZANO
April 3, 2012

HOUSTON (AP) — A federal appeals court judge on Tuesday seemed to take offense to comments President Barack Obama made earlier this week in which he warned that if the Supreme Court overturned his signature health care overhaul it would amount to overreach by an "unelected" court…

The AP seems to be taking editorial liberties. If a judge is hearing his own Obama-Care case, it is perfectly natural that he would want to know the government’s views on the validity of judicial review after Mr. Obama’s comments.

During oral arguments in Houston in a separate challenge to another aspect of the federal health care law, U.S. 5th Circuit Court of Appeals Judge Jerry Smith said Obama’s comments troubled a number of people who have read them as a challenge to the authority of federal courts.

"I’m referring to statements by the president in the past few days to the effect, I’m sure you’ve heard about them, that it is somehow inappropriate for what he termed unelected judges to strike acts of Congress that have enjoyed, he was referring of course to Obamacare, to what he termed a broad consensus and majorities in both houses of Congress," Smith told Dana Kaersvang, an attorney with the Justice Department in Washington, D.C.

On Monday, Obama issued a direct challenge to the Supreme Court, saying he didn’t believe the high court would take the "unprecedented" step of overturning a law passed by a strong majority of Congress.

"I want to be sure that you are telling us that the Attorney General and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases," Smith said.

A somewhat surprised Kaersvang told Smith the Justice Department does recognize this power by the courts and made reference to a landmark 1803 case that formed the basis for judicial review.

That is awfully generous of the Justice Department. Now if they would only tell Obama about Marbury v. Madison, there might be some progress made in his legal education.

However, Smith ordered Kaersvang to submit a letter to the appeals court by Thursday stating the position of U.S. Attorney General Eric Holder and the Justice Department on the concept of judicial review.

"The 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 statements," Smith said

Which sure sounds like the Justice Department is being made to stay after school and write, "I will not challenge the Supreme Court’s right to judicial review" five hundred times.

For the record, Judge Jerry Edwin Smith, who is from Texas, was nominated to the Fifth Circuit by President Ronald Reagan. He probably feels like he is living in a strange new country when dealing with Obama’s bizarro Justice Department. And who can blame him?

White House officials had no comment on Smith’s statements, instead referring to comments Obama made earlier Tuesday at the annual meeting of The Associated Press in Washington…

In which Obama tried to back off his earlier statements, but ended up sounding even more uninformed and yet condescending.

At the meeting, Obama said the Supreme Court "is the final say on our Constitution and our laws, and all of us have to respect it. … I have enormous confidence that in looking at this law, not only is it constitutional, but that the Court is going to exercise its jurisprudence carefully because of the profound power that our Supreme Court has."

When is Mr. Obama going to learn to exercise his profound power more carefully?

This article was posted by Steve on Wednesday, April 4th, 2012. Comments are currently closed.

13 Responses to “Judge Demands DOJ View On Judicial Review”

  1. GetBackJack says:

    Obama keeps taking the offered rope and hanging himself with it

  2. River0 says:

    Bravo Judge Smith! This is beautiful, a fearless jurist sending the Administration back to school; exposing the Naked Emperor and his bogus court for all to see. This is epic, and unprecedented. Even FDR’s court packing scheme – as bad as it was – didn’t show such brazen ignorance.

  3. untrainable says:

    I love this guy. But does anyone really believe that Eric “The Holdup” Holder is actually going to respond to this request? The way he has been running the DOJ, I don’t think he could actually write a cogent 3 page response without a staff of writers a set of encyclopedias and someone to help him with the spelling. He can’t be bothered to actually DO his job, much less respond to every “crazy activist jurist” out there who doesn’t live in Marxist Utopia. I hope judge Smith doesn’t back down on this, but his request will most probably be completely ignored and subsequently washed from the news by “THE WAR ON WOMEN” or “TR*VON (wouldn’t want to use his name illegally), and if anyone asks… “What he said wasn’t what he meant”.

    President Oblameless supports the Supreme Court’s authority only as far as he can trust them to uphold his edicts on the unwashed. After that point, they’re “unelected”…”judicial activists”… and they should understand what he wants and bow to his will. He IS the Messiah after all. So essentially it’s not the power of the court Obama doesn’t understand, it’s their existence and purpose. It’s just like the constitution, he sees it as a set of negative liberties for the government and not a set of positive liberties for WE THE PEOPLE. Simple as that.

    • Rusty Shackleford says:

      First, loudest and only argument from Eric “The Red” Holder’s department:

      “Judge Jerry Smith is a racist”.

    • untrainable says:

      Too early in the back and forth for the race card. They’ll paint the guy as a radical conservative activist judge who just isn’t smart enough to understand the brilliance and subtle nuances of Oblameless’ words. Then they’ll look for personal dirt they can throw. Then they’ll slough off any questions about their response as they do with every pertinent question any of them are asked. Only if none of that stops the news cycle will they cry rascist. And at that point they’ll be crying at the top of their lungs with the full weight of the media behind them.

    • Rusty Shackleford says:

      I was just trying to beat the rush. It’s the inevitable result after all the strawman arguments, belittling and scolding of the supreme court by his royal-ness. By June, the screams of racism in the supreme court will be deafening.

      Rush’s theory yesterday fascinated me:http://www.rushlimbaugh.com/daily/2012/04/04/what_obama_will_say_if_obamacare_loses

      They strike the mandate down and say, “You know what? Go back to the drawing board.” What do you think Obama’s gonna do? Obama’s gonna make tracks for the first microphone and camera. And he’s going to say something like this: “For 60 to 75 years, we have been struggling to achieve fairness and justice for all people in this country, not just the privileged few. We have recognized that the way health care exists in this country is emblematic of the injustice and the discrimination that has defined this country since its beginning — and look what happened!

      “Republican judges just took away your health care. Republican judges just decided you were about to get too big a piece of the pie. Republican judges determined that you’re not important enough to have health care,” and then he’ll throw in: “We’ve seen similar struggles since the days of Jim Crow,” or he’ll throw in some identifier. He’ll throw in some codeword. And then he’ll relate the loss of health care to civil rights battles that have occurred. And he’ll do this in his best professorial voice. And he, in the process, will be lighting another fuse. And after he finishes, then the sycophants will hit the trail, and we will hear slogans like, “We shall overcome the court! We will overcome the court!”

      Then his buddies at The Daily Beast will start writing columns that the judges who voted to overturn it need to be impeached. Where they live will be discovered and publicized. And just as the Democrats sent Occupy people and union people up to the homes of the executives at AIG, so, too, might they do this to various judges, justices, and so forth. I’m getting pretty specific here. Some of this stuff might not happen, but I guarantee you that there will be, with all the rest of this, a defiance. “Why do we have to listen to them anyway?” You remember, this is what critical legal studies is all about. “Why do we have to listen to these guys? These guys, appointed by Republicans, just took away our health care! Why do we have to listen? Why do we have to just, again, shut up and go home quietly and accept this insult and this discrimination? Why? They keep their health care. They didn’t get rid of their own, but they just got rid of yours.”

      I swear he can read captain skidmark like a book. This will be one of those “don’t doubt me” moments and a few months from now he’ll be playing this back during a current airing of his show to say, “See? I told you so.”

      I’m not a drooling fan of Rush so much as I am delighted to hear him validate that which I’m already thinking. And that millions of Americans think this as well. Sure, it’s sometimes cynical but you know what? Cynical works for me…it has helped me survive and avoid people who would otherwise do me great harm and it has also helped me keep my self-respect, if you can understand the context of that.

      Yup, Obama is the type of person who, when I was younger, we would just dismiss. If he said anything, the group would look around with expressions of befuddlement on their faces, shake their heads, laugh and then go about our business.

    • Rusty Shackleford says:

      And from Rush’s show today:

      There was a story in The Politico today: “Jeffrey Toobin: Judges ‘Deranged’ by Obama Hatred — After accusing a federal appellate court panel of throwing a ‘hissy fit’ about President Barack Obama, outspoken CNN legal analyst Jeffrey Toobin said Thursday that the order requiring the president to explain his beliefs about judicial review was a ‘disgrace’ and he called some Republican judges ‘deranged by their hatred for the president. I think what these judges have done is a disgrace,’ Toobin said on CNN. ‘What President Obama said was entirely appropriate. There is nothing wrong, there’s nothing controversial.’ He said, ‘I signed a law that was passed by the democratically elected congress and I think it’s constitutional.'”

      Now, over the past three years, why is it, national socialists in the media have been saying, is the reason why conservatives ‘hate the president’?

      A) Because of his Marxist Policies
      B) Because of his destruction of private sector business
      C) Because of his war on oil
      D) Because we’re racists.

      So, I’m still saying that it’s not going to take long for the left to accuse His Honor Smith as being a racist.

  4. AcornsRNutz says:

    I don’t think they’ll do any of that. I think they’ll just ignore him and allow the media to bury the story before the next news cycle.

  5. GetBackJack says:

    Judge Will School Obama

    http://goo.gl/xmH4E

  6. artboyusa says:

    PAWN STARS! America’s favorite show returns! It’s another busy day at the pawn shop. We see the door open and Barack Obama enters, holding a whip, driving before him a chained and shackled group of elderly men and women in flowing black robes…

    Obama: “Hold up there, coffle. Hold up, I say!”

    Rick: “Hi! Oh, it’s you again. What have you got there?”

    Obama: “This is the Supreme Court of the United States”.

    Chief Justice Roberts: “I demand you release this court at once!”

    Obama: “Quiet, you. Don’t make me tongue lash you again. I’ve had them for about three years now and they’re not really working out for me. Too activist, if you know what I mean. I’d like to trade these in and buy some new ones, so I thought you’d like to have a look at them…”

    Justice Scalia: “This is outrageous behavior! This is illegal and unconstitutional!”

    Obama: “Quiet, you. I’ll be the judge of that. They’re all in good shape; nine strapping examples of the finest in American jurisprudence. All guaranteed sound of wind and teeth, if not of opinion. There’s years of life left in them – except for Ginsburg over there. I’m willing to give you a price break on that one”.

    Chumley: “Aw, they’re cute. Can we get them, Uncle Rick?”

    Rick (interior, to camera): “Back in the day, when America had constitutional government, the Supreme Court was a big deal. They were one of the three main branches of government: executive, legislative and judicial and their word was, literally, law. Now it’s the president and his media helpers whose word is law and the Supreme Court is a lot less important than it used to be. Even so, there are plenty of collectors out there who’d love to get their hands on this unique piece of Americana – but I’ve got to get it for the right price”.

    Rick: “So are you looking to pawn them or sell them?”

    Obama: “Sell them, definitely. Then I can invest in some new ones that’ll be a little more, you know, obedient”.

    Justice Ginsburg: “Hey, don’t sell me! I’m obedient!”

    Justice Kagan: “Me too!”

    Justice Sotomayor: “Me three!”

    Rick: “Quiet, you”. (To Obama) “And what were you looking to get out of them?”

    Obama: “I’m thinking… another four years in office”.

    Rick: “I’m thinking… another eight months”.

    Obama: “Eight months! That’s not even constitutional!”

    Chief Justice Roberts: “He’s right, you know Rick”.

    Rick: “Quiet, you. Alright, I’ll go nine”.

    Obama: “I’ve got so much wrapped up in this, ambitionwise and all. I really need to get at least twelve out of it”

    Rick: “Nine, and that’s my final offer”.

    Obama: “Okay, deal” (they shake hands).

    Justices: “You can’t do this! Our government is not for sale – well, anyway you still can’t do it!”

    Old Man: “Quiet, you. Look Ricky; this is a bad idea, interfering with the Judicial Branch. Always has been; look at what happened to FDR. Who knows how long this livestock’ll sit around the store? We’ll have to water and feed them and clean up after them and everything…”

    Rick: “That can be Chumley’s job”.

    Chumley: “Hey, wait a minute…”

    Everyone: “Quiet, you!”


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