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.



38 Comments

But, but, it makes for great theater…
And, I’d like to see then answer…
Despite the apparent (or is it alleged?) overreach. /s
The appropriate response would be to go ef himself.
A squabble between 1%ers. Harvard, Yale and the University of Chicago are the most dangerous institutions of “higher learning” in the United States because it’s the breeding ground of the ruling elites.
Sort of OT, Masaccio. Do you think Obama’s talk is indicative of a feeling (or information) that SCOTUS may strike down all or part of ACA?
Guess there is a first time for everything.
Ever so true. Courts have become playgrounds for the elites where their own (the graduates of a handful of elite schools) act as refs. The rabble are neither seen nor heard.
I’m beginning to know how the French bourgeois and peasants felt prior to the storming of the Bastille.
At least someone has to say the emperor has no clothes.
Emperor Obama that is.
It’s not everyday you see such a loathesome shitheel like this. Oh he’s from Texas. Nevermind….
Whose telling the rest of the 1%ers they have no clothes?
I once appeared in a bankruptcy court in Manhattan with an interesting motion. I got treated like some kind of minor irritant by both the judge and the snotty lawyers at Milbank Tweed.
Next time, I think I’ll go to Yale.
As they say, I resemble that remark…Just ‘cuz it may be a bit of an over-reach….
Hear, hear.
obama ignored the economy and jobs for the people of this country and instead devoted his first year to give a gift to the insurance companies. Now he is afraid that the SCOTUS is going to knock down his “histortical” obamacare, so he is lashing out. Kudos to this judge who suffers from an “illness” according to you.
This pig of a president doesn’t deserve a second term.
That judge’s behavior strikes you as appropriate? You think that’s how judges are supposed to behave? You’ve been watching too much Judge Judy.
You just don’t get it. It’s nothing more than a squabble between 1%ers. Oh, wait a minute, you must think this system so thoroughly corrupt and compromised from top to bottom can be reformed and ultimately salvaged. Good luck with that.
I have never watched Judge Judy.
In which case we’ll just enter a plea for you: pig-ignorant.
You’re_the_pig_for_lobbing_that_insult_at_karenb
_
We_must_allow_dissent_within_our_circle
I gotta say, I’m rooting for injuries in this contest.
My thoughts precisely.
“That judge’s behavior strikes you as appropriate? You think that’s how judges are supposed to behave?”
Why not? Nobody else observes the proper decorum. The president rides roughshod over the Constitution, starting wars without leave, assassinating American citizens, taking away our rights to a trial and our rights to assemble in the streets.
He can dish it out but he can’t take it. Now he wants to ram this predatory insurance legislation down our throats and we should all shut up about it. Sorry I don’t think so.
ACA may be deeply flawed, but it does have some good elements. I would rather keep it and work to transform it than start all over again and get less then nothing. Remember that SS and Medicare did not resemble the current programs when they were first put into play.
With today’s political climate every advancement is going to be incremental and hard fought.
Love the video. Totally think the judge has made a fool out of himself.
OTOH, Obama made a bigger fool out of himself. The VERY FIRST CASE I learned in law school 9and it’s probably the first case every other lawyer learned in law school, though I have no proof of that) was Marbury v. Madison.
I shudder to think how underserved the students in Obama’s con law classes were, if he is unfamiliar with this case. And who hires a guy to teach con law if he doesn’t know THE foundation case for the concept of judicial review of statutes?
Cynthia–
Not a lawyer, so asking with humility and non-legal understanding of Marbury v. Madison. It seems to me the authority for judicial review of statutes was not granted to the courts by the Constitution; it was not given to them by our elected legislators. They (the courts) seemed to fashion this concept out of whole cloth, taking for themselves a degree of power never conceived of by the framers. I know this is long-settled case law . . . but does that make it right? Aren’t courts (and ultimately the SC) tasked with interpreting the law?
They’re probably all working in the Justice Department now.
It’s awfully convenient that “advancement is going to be incremental and hard fought” with today’s oh so convenient political climate to justify more convenient malignant refuge. Refuge from RISK. Refuge from COURAGE. Refuge from starting over again and again until we get much more favorable results than the flawed slop we’re settling for. Convenient because of how much easier it is to take another toke off the hope/change/transformation hash-pipe than risk “getting less than nothing”. So don’t rock the boat. Be a team player … and just pray, pay, and stay. Mmmkay?!?
Not okay – it’s a recipe for deliberate failure …
DEMOCRATS CIRCA SS/MEDICARE: Weakness is pathetic.
DEMOCRATS TODAY: Weakness is provocative.
MLK once said “nobody can ride your back unless its bent” and his words continue to haunt us. Because we keep coming to the negotiating poker table with our backs already bent and expecting to win against the Blue Dog Republicans with our full house of Ace-No-Face only to wonder how we flying fuck did we manage to get euchred again.
The answer is self-evident …
The Democrats of yore knew the rules of the rigged game: Poker in the front; euchre in the rear. The Democrats of today enjoy getting handsomely rewarded by “losing” to the Republicans under the centrist’s house rules.
Jonathan Turley
http://jonathanturley.org/2012/04/04/federal-court-slams-justice-department-over-obama-comments/
Excellent comment! My thoughts exactly!
I’ve looked carefully at Obama’s statement, and I don’t see any contradiction with Marbury v. Madison. He says the Court’s haven’t struck down a comprehensive regulatory statute since the New Deal, and to my knowledge that is right. Congress has a tremendous amount of power to regulate interstate commerce, and this is an important regulatory provision that fits within that power. I’m sure plenty of lawyers agree with Obama and me, that this would be a breath-taking act of judicial activism.
None of this discussion has anything to do with the merits of the law, about which reasonable people can disagree. I don’t think much of this solution myself. But I would really be surprised if it were held unconstitutional. And I would be horrified if the Court did anything stronger than determine that the mandate is unconstitutional and leave the balance of the act in place.
I shall not question judicial authority.
I shall not question judicial authority.
I shall not question judicial authority.
I shall not question judicial authority.
I shall not question judicial authority.
I shall not question judicial authority.
I shall not question judicial authority.
…
Ouch. That’s gonna leave a mark.
Holder’s Answer To Judge Jerry Smith
This lawyer disagrees, as do many others. It is certainly debatable whether Congress can use the Commerce Clause to compel the American People to purchase a product from a private company. I think the answer is flatly no.
Holder should have stopped there. There was no reason to go further except that the White House is looking to escalate the fight. Which brings us back to Jonathan Turley’s observation:
Be careful what you with for … because you just might get it.
The President was not only dead wrong, he was talking such incredible nonsense it’s truly hard to believe he would say such a thing.
Of course, the 5th Circuit Court didn’t have to be so obnoxious about rubbing his nose in it…
Thanks, Tarheel Dem. That is a fabulous letter, just as I expected. Holder flatly affirms the right of the court to hear questions of constitutionality. He says that the issues are fully briefed, and that this letter is not a supplemental brief. Then he argues his jurisdictional issues in the guise of explaining judicial review to a somewhat dense law student. Then he briefs the appropriateness of the President’s remarks.
It is a lovely example of the power of brains over petulance.
I think his initial words were not exact, but the overall implications are exactly right, as Holder’s letter shows.
clearly, judgie jerry smithie is an IMBECILE. if anyone in the world wants to know whats wrong with america, it is the power of the imbeciles with failed brains. you have wannabe dictators acting like momar gadafi who have it in them to amplify those fears by simply being fearful that they are not fearful enough.
there is a similarity between courage and cowardice – both appear to be loud, outstandish and daring. but there is also a difference. courage is thoughtful of all persons with special concern for defending the most vulnerable among us while cowardice is arrogant and self-righteous and has the bullied victim and captive defending his pimp.
know this. the sellouts and supporters of the arrogant cowards will never properly acknowledge the trespass.