Previously a nobody, Jerry Smith was appointed to the Fifth Circuit Court of Appeals in 1987:
Smith attended Yale University and Yale Law School, earning his bachelor’s degree in 1969 and his J.D. in 1972. After law school, he clerked for Judge Halbert O. Woodward on the United States District Court for the Northern District of Texas.
Smith later served as the director of the Harris County Housing Authority (1978–1980), Special Assistant Attorney General of Texas (1981–1982), chairman of the Houston Civil Service Commission (1982–1984), and the City Attorney for Houston, Texas (1984–1987).
In the real world, that would be a great resume for a State trial court judge, and a fair one for a State appellate court judge. In Texas, it’s enough to get you appointed to the US Court of Appeals. Smith has now showed his fanny, as my mother would say, in front of the entire country, with this direction to a Department of Justice lawyer:
Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That 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 and again to the position of the attorney general and the Department of Justice.
Before I retired from law practice, it would never have dawned on me to direct my mother’s language at Judges, who held my clients’ interests in the palm of their hands. We did, however, have a term for the likes of Smith: we said he had a case of black robe fever. It’s a disease that lesser minds get when they realize that they are appointed for life, and they don’t have to answer to anyone for their actions. They insist that everyone who appears before them bow before their authority and brilliance. They snap and snarl at lawyers, and their opinions bear a distinct odor of stupid that is hard to explain to clients. And, of course, this is especially hard on smart lawyers, who have to pretend to defer to these little Napoleons.
Attorney General Eric Holder took the smart lawyer approach, saying he would respond “appropriately”. I’m sure he will do what he has to do to protect the interests of his client, the United States of America, against the Texas menace. I’m equally sure Holder dreams of the kinds of responses that are actually appropriate to this display of rancid judicial temperament.
The appropriate response would be a motion for recusal for bias, naming Smith and the two judges who watched without comment. 28 USC § 144. There is little doubt of the hostility of Judge Smith to the President, who is ultimately responsible for administration of the ACA. Alternatively, Holder could move for recusal pursuant to 28 USC § 455(a), requiring a judge to disqualify himself if his impartiality might reasonably be questioned. I don’t think anyone believes that this judge is impartial. Why, the equally arrogant Rush Limbaugh praises Smith, a clear sign he knows whose side the judge favors; hint: it isn’t the United States of America.
Unfortunately, a repulsive case of black robe fever isn’t grounds for recusal, even if the judge could figure out the nature and cause of his disorder.