View Full Version : Judge Orders DOJ to Respond

04-04-2012, 11:00 AM
Judge Smith has ordered the DOJ to provide a response on their understanding of the propriety of Judicial Review.

My guess is that The Moron will refuse to subject itself to the authority of a co-equal branch of government and therefore order the DOJ not to comply.

04-04-2012, 11:24 AM
The Moron here in question is Judge Smith, abusing his powers, and the public treasury, to address a political question he fancies.

Most likely these lowly prosecutors will comply, as he does have such a power, although his enforcement mechanism is a blunt-edged instrument-- would he really JAIL prosecutors on contempt, or throw out the underlying case, which has nothing to do with his order?

In fact, had the administration wanted an example of a political bench acting up outside their judicial bounds, they could not have ordered up a better one.

Explaining why other conservatives have said this judge is way out of line.

<span style='font-size: 17pt'>Conservatives Bristle At Federal Court’s Retaliatory Move At Obama</span>

Here. (http://tpmdc.talkingpointsmemo.com/2012/04/conservatives-bristle-at-judges-punching-back-at-obama-over-health-care-law.php?ref=fpnewsfeed)

<div class="ubbcode-block"><div class="ubbcode-header">Quote:</div><div class="ubbcode-body"> The legal battle over the constitutionality of the health care law was always going to be hard-fought. But in the aftermath of Supreme Court arguments, Republican-appointed appellate judges have taken the unusual step of publicly confronting President Obama after he bristled at the notion that the high court would overturn the law. That wouldn’t be an unusual play for an elected politician, and indeed congressional Republicans have blasted Obama for politicizing the judiciary. But federal judges are supposed to stay above the political fray. And even conservatives are concerned that the circuit court judges stepped out of bounds Tuesday — and made Obama’s point about judicial overreach for him.

“I find all of this a bit incredible,” said Brian Fitzpatrick, a professor at Vanderbilt University School of Law and former clerk to Justice Antonin Scalia.


“The president was being cute in his statements,” Fitzpatrick said. “I don’t think he really believes courts ought to defer to the political branches; I don’t recall him expressing displeasure when the Supreme Court struck down Congress’s partial-birth abortion law, for example. But the president is a politician. He’s allowed to be cute. Federal judges are supposed to be above that. I suppose that’s what we get for giving them life tenure.”

“Clearly Obama pissed off Smith through yesterday’s sloppy talk,” said one Republican lawyer in Washington who reviewed the exchange. “What he’s doing here is a bit aggressive insofar as it’s not like he learns anything from the briefing. It’s quasi-punitive, but it’s some lawyer in the civil division who is working on this right now, not even a White House counsel lawyer, so it’s punitive in an ineffectual way. … Obama screwed up [Monday] by speaking sloppily, but substantively he fixed it [Tuesday]. I’m quite confident my side will overplay its hand here.”

Many conservatives and Republicans were unnerved by Obama’s initial statement, but even among them the consensus is that it’s not the judges’ job to punch back politically or defend its own turf.

After listening to audio posted by the court, Orin Kerr — a professor at George Washington University Law School and former clerk to Justice Anthony Kennedy — concluded, “[t]he order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ’s position, and lower court judges deciding cases based on briefing and argument should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn’t help anyone.”</div></div>

04-05-2012, 11:54 AM
Well, the little minions at DOJ submitted to the Judge and turning their homework assignment before noon today, as directed. I think the judge was right in getting his hackles up however. If we are country that operates under the 'rule of law', there does need to be agreement on exactly what those laws are. It is often the case in discussions on this forum that the disagreements are so fundamental that there is the temptation to see if we can agree that 1+1=2, because if we can't agree on that there is no need to go further.

04-05-2012, 03:32 PM
I call bs on this judge again.

There was no serious doubt, and he had before him written and oral briefs, and the assurance of the government attorney as to his concerns, and the president's own walkback.

A judge should not take political notice of public affairs that are not in his courtroom, nor can he really have any business dictating the DOJ provide him briefs to his anal specifications.

Bad form, and it discredits him and his fellow appellate panel, and the entire judiciary, with such a spectacle of injudicious behavior. I think it is an impeachable offense, frankly.

04-05-2012, 04:25 PM
Classic Republican overreach. They think they have a winning issue suddenly and they go too far with it. Dems now just have to pull all the tape of everyone of these clowns, including Gingrich just these past few months, going after activist judges and screaming they will impeach them. These fools walked right into the trap.

04-05-2012, 04:35 PM
DOJ: No, Obama Didn’t Say Courts Can’t Strike Down Laws
TPM (http://tpmdc.talkingpointsmemo.com/2012/04/doj-no-obama-didnt-say-courts-cant-strike-down-laws-1.php)

U.S. Attorney General Eric Holder responded Thursday to a federal appeals court’s request for a letter explaining President Obama’s assertion that the Affordable Care Act must be upheld, a move that even some conservatives considered a bridge too far.

Holder reminded the Fifth Circuit Court of Appeals that the president was making the point that the law jibes with longstanding precedent, but — contrary to what the Republican-appointed judges suggested — he wasn’t challenging the judicial branch’s authority to strike down laws that violate the Constitution.

The key portion of the DOJ letter:

<span style="color: #000066">"The Department has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation.

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 …

The power of the courts to review the constitutionality of legislation is beyond dispute."</span>

In the 3-page letter, Holder noted that the Supreme Court has granted great deference to Congress on legislative matters. He concluded, “The President’s remarks were fully consistent with the principles described herein.”

Read the full letter below:

Letter from Holder/DOJ (http://www.scribd.com/kyle_r_leighton/d/88152952-Fifth-Circuit-Letter)

04-05-2012, 05:53 PM
Not only did they threaten to impeach them, they threatened to OVERTURN THEIR RULINGS, if they didn't like them, by majority vote.

An interesting position, although slightly radical, wouldn't you say?

04-05-2012, 05:56 PM
Great letter, and it makes the judge look a fool, a reactionary, and sorely lacking in judicial temperament.

As the lifetime appointment is only to be held 'during good behavior,' isn't such intemperate behavior sufficient to proceed against him in impeachment hearings?

Factually, it actually matters little, according to such worthies as then member of the minority leadership, Gerald Ford (R-MI), who said an impeachable offense was whatever the House said it was, by simple majority vote. But that was when they were trying to impeach Eisenhower's ratified nominee, Chief Justice Earl Warren (R-CA).

04-06-2012, 07:20 AM
If this is overreach why is the DOJ complying? Do you not think they have sought out their own council to see if this is legal and if they really do have to respond?


04-06-2012, 10:50 AM
Federal judges have few restraints on their power within the confines of their courtrooms. Usually, if a normal federal judge ordered something out of line, you'd move to the higher appellate court for a stay of such an order. This is already at the appellate court level, so the appeal could only be to the 3-judge panel en banc (including this same lead judge as a member), or to the SCOTUS.

There is little reason to think either option would work, and the option of outright defiance of the court order would just feed into the thug or outlaw meme being pushed so strongly.

04-06-2012, 11:40 AM
<div class="ubbcode-block"><div class="ubbcode-header">Quote:</div><div class="ubbcode-body">Federal judges have few restraints on their power within the confines of their courtrooms. Usually, if a normal federal judge ordered something out of line, you'd move to the higher appellate court for a stay of such an order. This is already at the appellate court level, so the appeal could only be to the 3-judge panel en banc (including this same lead judge as a member), or to the SCOTUS.

There is little reason to think either option would work</div></div>Exactly, and this is because it is not beyond their power. The DOJ understand the law and are abiding by it.


04-07-2012, 12:15 PM
That's only true in as much as it's also true a federal judge could order counsel of either side to stand and recite nursery rhymes, and has the brute force to enforce it by jailing any counsel who refused under a citation of contempt of court.

Has the power? Sure. But use of that power is an abuse, in the case above I describe, and in this 'order' to the federal government attorneys as well.

That's why federal judges who enjoy life tenure only do so under 'good behavior,' absent which they may be impeached.

04-07-2012, 02:32 PM
No worries about impeachment here. The only people having an issue are those of you who tell themselves they know so much when in reality it is never as you say.