Earlier this week, Republican Fifth Circuit Judge Jerry Smith ordered the Justice Department to submit a three page, single-spaced letter responding to President Obama’s recent criticism of judicial overreach. Smith’s order is widely perceived as a partisan effort to embarrass the president — even Fox News’ Greta Van Susteren thought the order was so inappropriate that she said that “I’m not so sure the Department of Justice has to comply with this.”
Republican radio host Rush Limbaugh, however, was delighted to see this Republican judge reaching out to aide the Republican Party. As Limbaugh said on his show yesterday:
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.
It is, of course, not at all surprising to see a leading Republican so gleeful at this Republican judge’s Republican Republicanism. The only loser in this incident is any perception whatsoever that the Fifth Circuit can be relied upon to see aside its partisan preferences and fairly apply the law. As Orin Kerr, a former constitutional advisor to Sen. John Cornyn (R-TX), explains, “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.”