Judge Smith Should Recuse Himself (And The RNC's Lie)

(By Andrew MacKie-Mason)

The health care litigation has always been highly political. Recently, the Republican National Committee even put out an advertisement that blatantly manipulates the audio recording of the argument to make the Solicitor General (who the Republican National Committee, apparently having flunked civics, refers to as 'Obama's Lawyer') appear to have stumbled over his words for a good 20 seconds. In fact, if you listen to the actual recording, you see that the RNC pieced together multiple small stumbles from throughout the first few minutes, and even repeated some of the clips to make it go on for as long as possible. And these people are seriously asking for your votes. Anyways.

This Tuesday, Judge Jerry Smith (who sits on the Court of Appeals for the Fifth Circuit) entered the political fray. In response to some comments that President Obama made on a hypothetical ruling by the court striking down the Affordable Care Act (the President overstated how unusual such a ruling would be, calling it 'unprecedented'), Judge Smith decided to berate the government's lawyer in a different Affordable Care Act case currently in front of a Fifth Circuit Panel.

The audio can be found here (Windows Media Player, 30 MB). The government lawyer starts talking at about 17:10, and Judge Smith interrupts right at 18:00. At that point, he demands to know whether the Department of Justice agrees that the courts have the power of judicial review. The government lawyer is momentarily flummoxed, because it's obvious to any sane person that they do: that hasn't been a seriously contested point of American law for many, many years.

After she recovers from the out-of-left-field question, she states that yes, of course, the DOJ doesn't deny that the courts have the power of judicial review. She tries to get back on track, but Judge Smith won't let it go, and eventually demands that the lawyer write him a "3-page, single spaced" letter stating the government's position on judicial review, and orders them to specifically reference the President's statements.

A few things are clear: judicial review was not at issue in this case. The DOJ hadn't argued against it, because, well, everyone accepts it. President Obama was asked a political question, and made a political answer (one which can be at best stretched to suggest tension with the principle of judicial review), an answer that was in no way an argument in any court case, let alone the one in front of Judge Smith (the President was addressing a case already at the Supreme Court).

There seem to be two possible motivations here. Either Judge Smith was trying to punish the executive branch for what he saw as an unwarranted political attack on the judiciary, or he was trying to punish the Democratic President for a bill. Smith's words seem to suggest the latter (i.e. the use of "Obamacare"), but it's hard to say.

Either way, of course, it's obvious that Judge Smith was acting inappropriately, either in breach of important separation-of-powers doctrines (judges don't have the authority to compel the government to speak on issues not before the court) or in a highly politicized way. Either one is not in accordance with the standards we expect of our judges.

Judge Smith has also received what should be the kiss of death for anyone whose job relies on being seen as sane and reliable: public support from Rush Limbaugh:

Now, yesterday afternoon a federal judge by the name of Jerry Smith at the Fifth Circuit Court of Appeals in Houston had had enough, and he demanded that the Justice Department give him a three-page memo on whether or not this administration understands the concept of judicial review. Now, I saw this and I started cheering. I started laughing. Because it's about time people started fighting back on this. The American people love the concept of a team. You have to have the right people on the team, but we are a team here. There is a team that's opposing this president, and attempting to make him a one-termer this November at the ballot box. It's great to have this response.
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He's calling these guys out. He was threatening, he was intimidating, he was warning these justices -- and this guy not gonna sit back and take it. "Oh, yeah? Yeah? Give me some clarification on this." And of course Department of Justice says, "Well, of course we know about judicial review! Of course courts can strike down law." Well, you better tell your president.
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By the way, I love the fact that he called it "Obamacare" from the bench. And he tells this lawyer: You go back to your boss and I want three pages on this. This is like a college professor punishing a student who doesn't quite understand what's going on. You go back, and you get me three pages, no less, single-spaced. I can't believe it. Single-spaced! He gets that specific. And it needs to be specific, because he wants these people on record. Obama's out saying, "There is no such thing; that's never happened." Judge Smith wants Obama's Justice Department to have it on paper from their office that essentially the president either doesn't know what he's talking about or is lying.

There's only one way this can go, if Judge Smith cares about the judicial system he serves: he has to recuse himself from this case, and all future cases related to the Affordable Care Act.