Last night, Fox News host Greta Van Susteren – an accomplished former trial attorney and legal analyst – criticized the 5th Circuit panel for making an illogical demand of the Department of Justice.
Yesterday, Republican Judge Jerry Smith, speaking presumably for the entire panel, demanded a 3-page, single-spaced letter from the Department of Justice on whether it agrees with President Obama that it would be inappropriate for “unelected judges” to strike down Obamacare. Obama himself clarified yesterday that, “[w]e have not seen a court overturn a law that was passed by Congress on an economic issue like health care,” which is correct.
Judge Smith asked the DoJ attorney whether courts have the power to overturn an act passed by Congress and signed by the President. The lawyer, Dana Lydia Kaersvang, straightforwardly answered yes and referenced the landmark case affirming such power of judicial review — Marbury v. Madison. Van Susteren said last night, “What I see, first of all, the judge doesn’t need this information, and she [DoJ attorney] answered the question. It really should be over at that point.” Explaining “I’ve never seen anything like this,” she urged the DoJ to refuse to comply with the Judge’s request:
VAN SUSTEREN: I imagine the discussion tonight at the Justice Department – I would certainly be having this discussion – is to refuse to do it. Because it really is beyond what is necessary in the case. It has nothing to do with the case. And the lawyer answered the question in court. And it’s clearly just, you know, the judge is mad. And to refuse to do it, maybe you draw a contempt charge but then I would then take it up with the full court. I’m not so sure the Department of Justice has to comply with this.
As Ian Millhiser observed, the 5th Circuit is mostly interested in trying to “embarrass the president.” He writes, “This is not how judges behave. This is how politicians behave. If Judge Smith and his co-ideologues cannot refrain from such purely political tantrums, they should resign their seats and run for office as Republicans.”