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“There, there, Judge Smith. Would you like a blankey and some turnip mush?”

[ 23 ] April 5, 2012 |

Balkin:

One hopes that, in light of these remarks, a great weight has now been lifted from Judge Smith’s shoulders. Perhaps now, having received assurances from the President of the United States that he actually possesses the powers of judicial review, Judge Smith can at last breathe a well-deserved sigh of relief. Armed with a new-found confidence, and the support of the Administration, perhaps he will now be able to put aside the distractions that have caused him such emotional turmoil in recent days. Perhaps, indeed, he may now, with equanimity, and a cheerful countenance, be able to return to the task of deciding the cases and controversies that are actually brought before him, as opposed to the remarks of politicians and media operatives that have almost nothing to do with his job.

Our prayers are with Judge Smith in his never-ending fight against anxiety and emotional upheaval. Surely there is no greater hell than that suffered by a person who cannot control his feelings of dread, and who finds himself buffeted about by a secret, gnawing fear that others do not accord him the respect and status that he craves. All of us can sympathize with the plight of Jerry Smith; all of us, in our own ways, have experienced our own dark nights of the soul. Your Honor– and we use that term advisedly–we feel your pain.

One additional note: one of the three members of this 3-judge clown show is Leslie Southwick, who Diane “Why Wasn’t I Primaried Two Cycles Ago” Fienstein inexplicably voted out of committee in 2007. I recall some commenters suggest that this was OK because Southwick was a reasonable, moderate, thinking person’s wingnut or something. I guess that’s the end of that…

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Comments (23)

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  1. firefall says:

    Well Southwick may just have been transfixed with disbelief (or alternately decided not to make trouble with a colleague she has to co-exist with for the rest of time, at the price of a little ludicrous byplay and loss of judicial dignity).

  2. actor212 says:

    Two words for Judge Smith….if that’s his real name:

    Xan Ax

  3. efgoldman says:

    1) A question for you leagles: Why is the fifth circuit hearing an ACA case when its already before SCOTUS? Wouldn’t anything they decide be mooted?

    2) I still think DOJ should have filed a recusal motion before the chief judge or the full bench.

    • rea says:

      Different part of the ACA at issue, I believe.

    • Quercus says:

      “2) I still think DOJ should have filed a recusal motion before the chief judge or the full bench”

      Yeah, because it’s well known how federal judges lavish praise on and make special efforts to reward lawyers who have pointed out less-than-competence in their colleagues on the federal bench. Really, the only profession known for doing less to cover for their colleagues and more to reward those who uncover problems with members of the profession is probably the police.

      • efgoldman says:

        So, the asshole can piss on the DOJ’s Wheaties, but not the other way around? In the fifth circuit, where any government headed by a Kenyan Commie Fascist is never gonna’ win? Fair Trial, wott eet izz?

        Lotta’ people suggested last night that DOJ should have filed a couple hundred pages of citations along with the letter…

        • Richard says:

          The fact is that if you are in federal court, you don’t do anything to piss off the judge if you care about winning the case. So you’re right, the asshole judge can piss on the DOJ but the DOJ can’t do the reverse unless they don’t care about winning. Thats the way it works in the legal system – the judge is the boss. The response the DOJ filed was perfect – it complied with the order while fully supporting the President and taking a sly dig at the opposition to the ACA.

          • Mark Field says:

            The letter was studiously neutral on its face, but there were real “fuck you” qualities to it: “Judge” instead of “The Honorable”; the denial that the letter was a supplemental brief; the extended discussion of the limits of judicial review; the fact that the letter wasn’t really 3 pages; and the one sentence statement that the President’s words were consistent with the case law cited.

  4. Martin says:

    I have a question about this stunt the three judges pulled. Wouldn’t such a thing automatically render any judgment they make suspect? So now let’s assume they rule against the ACA…. presto, some other judicial body (I suppose, unfortunately, this would be the SCOTUS, huh) would have automatic grounds to overturn their ruling, and short of that, it would give any unbiased body charged with following the ruling grounds to ignore it where it otherwise would not have grounds. It seems tactically less than shrewd.

    It reminds me a bit of the birthers, who invariably lard their lengthy explanations of why Obama is not a legitimate president with additional (and to the point of legitimacy irrelevant) opinions about the dangers that Obama’s policies pose for the republic. If you are making an argument against a president’s legitimacy, and you keep saying how awful you find their political agenda, it rather undermines the argument you’re making, regardless of the merits. If I were to say, “I love President Obama, I wish his every innermost desire were instantly made the law of the land, BUT I deeply regret that the evidence of his birth and citizenship oblige me to insist that he be removed from office….” — now THAT is a compelling position from which to argue illegitimacy. But the birthers keep disqualifying themselves with their hatred of Obama.

    That’s a digression. Can someone explain to me a jurisprudential argument that what this Court was doing makes sense as a matter of tactics?

    • Richard says:

      It doesn’t make sense as a matter of tactics but it also is very unlikely to matter. If this court decides that this section of the ACA is unconstitutional, then the DOJ can ask for an en banc hearing before the entire Fifth Circuit or a hearing before the Supreme Court. Both are discretionary. There is no right to en banc hearing or a decison by the Supremes. There would be no automatic grounds to hear the request and certainly no automatic grounds to reverse the decision. In deciding whether to hear the case or to grant en banc review, the fact that the appellate panel were dicks wont matter much. The entire Fifth Circuit or SCOTUS will most likely make their decision to grant review based on the merits of the eventual decision, not on this stupid order and their opinion of this panel based on this stupid order.

      But this order was made because Judge Smith is a right wing jerk and a pompous jerk of a federal judge, and without regard to tactical advantage.

      • Martin says:

        Yes. The right wing has found itself in a position where they gratify a desire for short-term (often PR) wins at the expense of the long game. This will destroy them eventually, indeed has been destroying them for a while now. Nothing in the GOP resembles anything like a strategy to gain or hold power in 5, 10, 15 years.

        • Jamie says:

          The problem is that incremental fights work. The Teahadists may be pushing themselves in to an extremist viewpoint, someday, but in the mean time, we live in a world where PP is slowly going away, anal probes for driving while black is now the norm, and corporations can spend whatever they want to buy politicians.

        • Holden Pattern says:

          I’m always fascinated by this Pollyannalysis.

          1) First-past-the-post means there can only be 2 viable parties — the analysis on this question is pretty clear.

          2) One of the parties has a bunch of insane billionaires and various industries who fund them and spend money on propaganda and “think tanks” to keep that party insane and to drive the national conversation further and further to the wingnut right.

          3) The other party is beholden to most of the same industries, and some sane billionaires and on most issues has followed the insane party to the right, but a few steps behind them. It’s immaterial whether that’s been done pragmatically or ideologically — probably some of each — but that’s what they’ve done.

          4) As a result of #2 and #3, whole areas of discussion on the center-left (not even left, but slightly to the left of center) are now completely off-limits among “serious” people and are ridiculed when raised. The leftmost bound in national political discourse on most issues is basically the moderate Republican position of the 1980s(*).

          5) The sane billionaires and the various industries who support both parties have a VERY strong interest in using the insane wingnuts on the right as a whip to keep the voters and leadership in the other party in line. Which, you know, works.

          6) The insane wingnuts on the right have a well-lubricated, well-funded machine for voter suppression and now for direct corporate interference in elections. They control directly (or indirectly through “moderate” corporatist fear) a superminority of the US Senate, a clear majority of the House, a clear majority on SCOTUS and in the rest of the federal courts for the foreseeable future, and completely control a lot of the states (most of them, I think — but I’m too lazy to go do the count). This after they were clearly demonstrated as a group, not even 2 years before their 2010 sweep, to be warmongering, bigoted, anti-woman, anti-science, deliberately ignorant economic nihilists who drove the country into two pointless wars and what is basically a depression.

          And somehow, the Republicans are going to lose the ability to take power in the United Sates? Wha?

          * The single area in which the US political discourse is clearly not as far to the wingtard right as it used to be is equal rights for gay people.

  5. DrDick says:

    I still have to wonder where all this emotional turmoil and outrage were when prominent Republicans were overtly calling for the assassination of federal judges?

    • Davis X. Machina says:

      Extremism in the defense of extremism is no vice.

    • R Johnston says:

      The same place it is now: directed at uppity niggers and other people who aren’t part of their tribe. To Republicans outrage is a matter of bigotry and tribal attachment, never having a thing to do with violation of principle. They don’t actually have principles that can be violated.

  6. LosGatosCA says:

    3 judge clown show, indeed. But you have to admire their principles:

    “We gotta take these bastards. I think that this situation absolutely requires a really futile and stupid gesture be done on somebody’s part!
    They were just the guys to do it.

  7. Tracy says:

    I think Holder should have sent the Judge a biography of Andrew Jackson and told him to look on the brit side.

    And had it presented by an ADA with a grin like a man who enjoys piulling wings off flies.

  8. c u n d gulag says:

    What EVERY Democratic politician should say whenever Conservatives scream about “Activist Judges:”

    “Well, you ought to know! But you didn’t seem to mind too much when every Republican President in recent memory has been flooding the courts with, not just Conservative Activist Judges – but down-right Reactionary ones!”

    I hope Holder’s response is at least adequate.

    With the Debt Crisis we have looming imminently, at least as described by Conservatives everywhere in this country, we can’t afford to keep the 5th Cirquit Court stocked with an endless supply of Depends, Kleenex, fainting couches, and smelling-salts.

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