Send in the Clowns

Or: Eric Holder's Ever So Polite "F*ck You"

First, this wasn't just the lone judge on the Fifth Circuit panel.

"When a formal order directing the filing of the letter emerged later in the day, Judge Smith was joined by the other judges on the panel, Circuit Judges Emilio M. Garza and Leslie H. Southwick."

And here's a breakdown of Attorney General Holder's response:

The government's brief cites jurisdictional bars to the instant suit and urges that plaintiffs' constitutional claims are insubstantial....At no point has the government suggested that the Court would lack authority to review plaintiffs' constitutional claims if the Court were to conclude that jurisdiction exists. The case has been fully briefed and argued, and it is ready for disposition. The question posed by the Court regarding judicial review does not concern any argument made in the government's brief or at oral argument in this case, and this letter should not be regarded as a supplemental brief.

There's some legal positioning there; but it also is a clear statement this isn't an issue in the case, and really never should have been raised from the Bench. It gets better.

1. The power of the courts to review the constitutionality of legislation is beyond dispute.

Okay, we could have expected that.

2. In considering such challenges, Acts of Congress are “presumptively constitutional,” ... and the Supreme Court has stressed that the presumption of constitutionality accorded to Acts of Congress is “strong.”

This is, in other words, an issue from first year Con law. But wait! There's more:

3. While duly recognizing the courts’ authority to engage in judicial review, the Executive Branch has often urged courts to respect the legislative judgments of Congress. ...The Supreme Court has often acknowledged the appropriateness of reliance on the political branches’ policy choices and judgments.

That's the third step, and the right hook to the presumptuousness of this panel which has rallied 'round this out of line judge. The letter includes that case law I have elided here, including the case law for this final point, indicating deference to Congress when it acts under the Commerce Clause. But the real point of this third item is in those first words: "the Executive Branch has often urged the courts to respect the legislative judgements of Congress," followed by a number of citations to case law. That's the lawyers way of telling the Judge: the President knows the law better than you do. Now shut up and do the job you're supposed to do. Follow the law, not your personal political predilections.

In legal circles, this is a slap down. You want to mouth off at the DOJ? They'll bring the case law. What've you got?

The judge (and his peers) are the guy coming to kill Sean Connery in The Untouchables, and finding out they've brought a knife to a gun fight. There is a world of stupid in this judge's temper tantrum, and Eric Holder and the DOJ just explained that to him in the restrained language of the courtroom. Orin Kerr got it absolutely right on the day before this letter was sent:

I think the court’s order was highly inappropriate, and Rush’s comments are an excellent example of why. Whatever the judges were thinking, their order was inevitably going to be interpreted as the product of three conservative judges trying to enter the political fray and take on a Democratic President. As Rush and many others saw it, the judges were joining the GOP “team,” trying to “punish” Obama and make him a “one-termer.” Rush Limbaugh celebrates that political role for the Fifth Circuit. Others condemn it. But given that the President’s statement at the press conference was not at issue in the case, and the court’s order was based on a very strained reading of a single sentence in the press conference, it was inevitable that the order would be interpreted in that way on the national political stage.

There is a reason the courts stick to their legal reasoning, and this is a perfect example of that reason. Obama won't be a "one-termer" because of this; but Judge Smith really needs to reconsider his fitness for the bench after this outburst, and especially this smackdown. It may not be clear to Limbaugh, but to lawyers and judges alike, Judge Smith and this panel look like clowns.