To be clear, nothing in Boudin’s opinion suggests that he fears marauding bands of gays will corner him in an elevator and play grab-ass, but Boudin goes to great pains to deny that a law that systematically excludes gay couples from the dignity of full marriage rights is motivated by “hostility to homosexuality.” “Traditions are the glue that holds society together,” Boudin proclaims, and the desire to maintain what marriage discrimination’s supporters call the traditional definition of marriage “is strong and can be honestly held.”

And yet Boudin ultimately concludes that the Constitution does not allow the federal government to exclude gay couples from federal marriage benefits once they are lawfully married by a state. He’s right about this, but he reaches this conclusion in a somewhat roundabout way.

Admittedly, Boudin’s task is muddled by genuinely incoherent Supreme Court precedents. Forty years ago, the Court said that minority groups that are “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process” are entitled to the strictest constitutional protections against discrimination. LGBT Americans are obviously such a group. Yet the Supreme Court has declined to extend this heightened constitutional scrutiny to anti-gay laws when given the opportunity to do so.

At the same time, the Court has also applied something more rigorous than very cursory constitutional scrutiny it applies to most laws when examining many anti-gay laws. Thus, the justices struck down an anti-gay Colorado constitutional amendment — holding that the amendment’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects.”

Boudin reconciles these two lines of precedent by noting that the Supreme Court may not accord the most rigorous scrutiny to all discriminatory laws, but it has still struck down laws “in which courts have had reasons to be concerned about possible discrimination.” Citing decisions striking down discrimination against “women, the poor and the mentally impaired,” Boudin notes that “gays and lesbians have long be the subject of discrimination,” and that is reason to treat DOMA with skepticism.

If Boudin had stopped there, or maybe a few paragraphs later where he explains that DOMA strips same-sex spouses of “meaningful economic benefits” similar to the benefits denied in other laws that were struck down, he would have provided an excellent argument for why marriage discrimination cannot be squared with our Constitution and declared that marriage equality must be the law of the land.

Judge Boudin, however, is clearly worried about what I have at times labeled the “Alabama Problem” — meaning that a Supreme Court decision recognizing the Constitution’s full promise of equality must necessarily extend to states with a legacy of massive resistance to the Court’s civil rights decisions. The justices may not yet be ready to take such a politically controversial plunge. Significantly, Michael Boudin does not appear ready to take that plunge either, and so he inserts a bizarre states rights argument into an otherwise excellent opinion:

[T]he denial of federal benefits to same-sex couples lawfully married does burden the choice of states like Massachusetts to regulate the rules and incidents of marriage; notably, the Commonwealth stands both to assume new administrative burdens and to lose funding for Medicaid or veterans’ cemeteries solely on account of its same-sex marriage laws. These consequences do not violate the Tenth Amendment or Spending Clause, but Congress’ effort to put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws does bear on how the justifications are assessed.

The upshot of this paragraph is that it allows Boudin to conclude that states like Alabama can continue to exclude gay couples from the Constitution’s promise of equality, while still extending that promise to couples in Massachusetts. But it is bad constitutional law that bears a disturbing resemblance to arguments the Affordable Care Act’s opponents have used to attack Medicaid. America should not have to choose between the blessings of equality and the certainty that our national leaders can adequately address national problems such as the deficiencies in our health care system.

Ultimately, however, Boudin’s opinion is a cause for optimism. The last federal appeals judge to strike a blow for marriage equality, Judge Stephen Reinhardt, is a well-known liberal crusader with little influence over the conservative justices. Boudin, by contrast, is a Republican appointee who’s clearly still uncomfortable with Constitution’s promise of equality throughout America. And yet he just published an opinion striking down the Defense of Marriage Act. This bodes well for gay couples when DOMA comes before the Supreme Court.

Douglas Holtz-Eakin

Douglas Holtz-Eakin is one of the Republican Party’s top economic pundits. He served as a top advisor to Sen. John McCain’s (R-AZ) 2008 presidential campaign. He organized an amicus brief which the Eleventh Circuit relied on heavily in its decision striking down the Affordable Care Act, despite the fact that his brief is riddled with factual errors and miscalculations. And he is one of the nation’s top evangelists for the idea that we can solve our economic woes simply by saving rich people from the crushing burden of having to pay their fair share of taxes.

Before Holtz-Eakin began his second career as a salesman for Republican economic policy, however, he actually was a serious economist. In 2004, Holtz-Eakin served as Director of the Congressional Budget Office, and he was asked to analyse the impact on the federal budget of eliminating the unconstitutional Defense of Marriage Act (DOMA) and extending marriage equality throughout the nation. According to the top Republican economist, opposition to marriage equality cannot be squared with the GOP’s supposed devotion to deficit reduction, as marriage equality slightly reduces the deficit:

The potential effects on the federal budget of recognizing same-sex marriages are numerous. Marriage can affect a person’s eligibility for federal benefits such as Social Security. Married couples may incur higher or lower federal tax liabilities than they would as single individuals. In all, the General Accounting Office has counted 1,138 statutory provisions—ranging from the obvious cases just mentioned to the obscure (landowners’ eligibility to negotiate a surface-mine lease with the Secretary of Labor)—in which marital status is a factor in determining or receiving “benefits, rights, and privileges.” In some cases, recognizing same-sex marriages would increase outlays and revenues; in other cases, it would have the opposite effect. The Congressional Budget Office (CBO) estimates that on net, those impacts would improve the budget’s bottom line to a small extent: by less than $1 billion in each of the next 10 years (CBO’s usual estimating period). That result assumes that same-sex marriages are legalized in all 50 states and recognized by the federal government.

According to last night’s federal court decision holding DOMA unconstitutional, Holtz-Eakin’s economic analysis is not simply an interesting historic artifact — it’s also a body blow to the forces trying to protect anti-gay discrimination from the Constitution. In defending the law, anti-gay Members of Congress proposed four reasons why they believed excluding gay couples from their constitutional right to marry is somehow justified, among them a claim that DOMA “is justified as an enactment designed to conserve scarce government resources.” Holtz-Eakin’s analysis refutes this claim, and the district court relied upon it in explaining why DOMA must go down.

In many ways, the resurrection of Holtz-Eakin’s days as a non-partisan economist is a metaphor for why conservative efforts to cling to anti-gay discrimination are doomed to failure. The most intriguing line in yesterday’s opinion is when it characterizes DOMA as an attempt to “establish[] an across-the-board federal definition of marriage limiting it to heterosexual couples, and preempting any opportunity to test the impact of state laws evolving to recognize same-sex marriage.” When marriage equality was nothing more than an idea, conservatives could scare the nation with warnings that gay couples would recruit your children, raise your taxes and destroy your marriage. Now it is a reality in many states — even if the federal government still needs to extend benefits to these couples — and the parade of horribles that anti-gay groups predicted never made it out the gate.

Holtz-Eakin’s memo demonstrates, however, that anti-gay discrimination was doomed even before America got its first taste of marriage equality. Reality leaks through, even if Congress does everything in its power to keep it away.

Harris, a graduate of Yale Law School, is a transactional attorney at the international law firm Greenberg Traurig. . . . The sources, who requested anonymity because they were not authorized to discuss the matter, said Harris’ lack of courtroom experience was indeed a sticking point for committee’s eight Democrats. . . .

State Sen. Raymond Lesniak (D-Union) said he remained opposed to the nomination because Harris has said that if approved, he would recuse himself from cases involving gay rights.

Christie has said Harris planned to recuse himself because in the past he had advocated for gay rights.

But Lesniak and other critics said a blanket recusal was unnecessary, and that most likely was a concession to Christie, who opposes same-sex marriage. A lawsuit brought by seven gay couples seeking the right to marry is pending in a lower court and is expected to make its way to the Supreme Court in a couple years.

Harris’ lack of experience is a legitimate concern. While transactional work can certainly be very challenging, it bears little resemblance to litigation, so it’s not clear how Harris is prepared to decide some of the most important cases that arise in his state.

His promise to recuse from gay rights cases, however, is far more troubling. An openly gay judge is no more required to recuse himself from gay rights cases than Clarence Thomas is required to recuse himself from race cases because he is black or Ruth Bader Ginsburg is required to recuse herself from gender discrimination cases because she is a woman. If Harris becomes a judge on the back of a promise to remove himself from gay issues because he is gay, he will set a dangerous precedent that anti-gay groups will cite every time another LGBT judicial nominee is named. Gay judges are not second class judges, and it is a grave mistake for them to behave like they are.

Ninth Circuit Nominee Paul Watford

The cases against these two nominees were flimsy at best, even from a conservative perspective. Liu’s enjoyed the support of conservative icons like Clinton-inquistor Ken Starr and torture advocate John Yoo. Senators opposing his nomination offered little more than misrepresentation of his scholarship or hyperbolic claims that he wanted to turn America into “communist-run China.” The case against Halligan was even weaker, and largely boiled down to the fact that she once represented a client — the State of New York — that disagreed with the NRA.

On Monday, the Senate will try to break yet another filibuster — this time on Ninth Circuit nominee Paul Watford. And, once again, it’s tough to imagine a good reason to support this filibuster. Watford is a leading young attorney and a former Supreme Court clerk. He has a small army of conservative supporters, including nearly every single person who clerked for a Supreme Court justice at the time Watford worked on the Court. And his opponents have barely even managed to articulate a reason to oppose him. The best they’ve come up with is that, in a legal career that stretches twenty years, he represented two clients that Sen. Chuck Grassley (R-IA) doesn’t like.

Unfortunately for Watford, however, he is guilty of being the kind of exceptionally talented attorney who could be on the Supreme Court some day. If past is prologue, that will be reason enough for conservatives to filibuster him.

Gay judicial candidate Tracy Thorne-Begland during his military service

Earlier this week, the Virginia House of Delegates rejected Tracy Thorne-Begland, a former Navy pilot and top Virginia prosecutor, for a seat on Virginia’s lowest ranking trial court because, in the words of Del. Bob Marshall (R-VA), Thorne-Begland’s gay “lifestyle is exactly contrary to” his obligation to uphold the state constitution. On CNN this morning, Marshall doubled-down on this view, explaining that he blocked Thorne-Begland because the judicial candidate had the audacity to serve his country while gay:

MARSHALL: [Thorne-Begland] had to misstate his background in order to be received into the military in the late 1980s. There was a specific question, “are you a homosexual?” He had to say no. He took an oath of office which he had to defy. . . . Dr. Martin Luther King and Rosa Parks never took an oath of office that they broke. Sodomy is not a civil right. It’s not the same as the Civil Rights Movement. You have to look at the past, and, in fact, look, in late 2011 he was critical of the, you know, Don’t Ask/Don’t Tell. He criticized our attorney general simply for explaining what the law of Virginia is with respect to certain protected classes.

Watch it:

First of all, “sodomy,” as Marshall so quaintly puts it, is a civil right. That was the holding of Lawrence v. Texas, which established that consenting adults have a right to be free from government interference in their “private sexual conduct.”

Additionally, while it may in fact be true that Thorne-Begland once misrepresented his sexuality in order to serve his country in the United States Navy, it is important to understand exactly what he signed up for when he told this potential lie. Tracy Thorne-Begland was a Navy pilot, and his superiors did nothing to hide from him the dangers inherent in this job. When Thorne-Begland was stationed at Virginia Beach, he was informed that 25 percent of pilots are killed in action over the course of a 20 year career. This was the job he might have lied in order to sign up for — to risk his life every day in defense of his county. Bob Marshall, by contrast, never served a day in the United States military.

Nor, apparently, did Marshall familiarize himself with civil rights history during all that time he spent not serving his country. Martin Luther King may not have taken an oath of office, but his entire career was rooted in a campaign to peacefully defy unconstitutional laws. And while there is some dispute over whether Rosa Parks’ famous decision to keep her seat on a Montgomery bus violated a city ordinance or merely a racist custom, her refusal to stand is widely perceived as an act of civil disobedience that triggered a movement of opposition to Jim Crow laws. A judge’s oath is to the Constitution, and Thorne-Begland acted with the greatest respect for our founding document when he fought back against the unconstitutional and now-repealed Don’t Ask/Don’t Tell policy.

Iowa Supreme Court Justice David Wiggins

In 2010, anti-gay groups such as the Mississippi-based hate group the American Family Association spent close to $800,000 to remove three Iowa Supreme Court justices who joined that court’s unanimous decision holding that marriage equality is required by the Iowa constitution. This fall, Justice David Wiggins is also up for a retention election, and Iowa’s GOP Gov. Terry Branstad recently announced that a similar campaign against Wiggins is likely. Wiggins, however, actually plans to fight back:

Iowa Supreme Court Justice David Wiggins vows he won’t stand quietly by if opponents of same-sex marriage launch a potent campaign to oust him from the bench.

“If someone wants to attack me, I’m not going to let them bully me,” Wiggins said in a telephone interview last week with The Des Moines Register. “If asked to, I’ll speak up for myself. The others didn’t do that last time. I will.”

Justice Wiggins’ statement that he actually plans to campaign to keep his job should not seem all that remarkable, if it were not for the fact that his three former colleagues essentially threw their retention races in 2010 by refusing to do the same:

[Former Justice David] Baker, in his speech accepting the Profile in Courage Award, said that he, Streit and Ternus made a deliberate decision not to form campaign committees in 2010.

“Our founding fathers chose wisely to not have judges in a political position,” Baker told the audience, which included Wiggins. “Had we chosen to form campaigns, we would have tacitly admitted that we were what we claimed not to be — politicians. … We strongly believed that the people of Iowa did not want us to be in the position of raising money for a campaign.”

Pretending that you are above the fray may be a lovely way to earn awards, but it is no way to win an election. Moreover, by effectively throwing their elections, Baker, Streit and Ternus did a whole lot more to undermine judicial independence than they did to protect it — their defeats only emboldened their opponents, and encouraged more efforts to apply political pressure to judges.

Virginia Delegate Bob Marshall (R)

Tracy Thorne-Begland served his country for 20 years in the Navy. After his discharge, he then rose to become one of the top prosecutors in the city of Richmond, Virginia. He was sponsored for a low-level trial judgeship by a bipartisan mix of state lawmakers, and seemed a shoo-in for the job. And then this happened:

Delegate Bob Marshall said he will seek to remove the name of Richmond prosecutor Tracy Thorne-Begland from a list of proposed District Court judicial appointments.

“I don’t even think it’s proper to put his name forward because of his behavior,” said Marshall, who called Thorne-Begland “a homosexual activist,” in a press release.

Thorne-Begland has been nominated to serve as a judge for Richmond’s General District Court, but, Marshall challenges the nomination on the grounds of the prosecutor’s sexual orientation.

“We have a constitution which says marriage is between one man and one woman and if he’s taking an oath, he has to uphold and defend that as a judge,” said Marshall.

“If his lifestyle is exactly contrary to that… I don’t see how he could do that,” he said.

Last night, the Virginia House of Delegates fell 18 votes short of the 51 needed to appoint Thorne-Begland to the state bench, effectively killing his opportunity to become a judge. Had he been appointed, Thorne-Begland would have been the only openly gay judge on the Virginia bench.

Moreover, its worth noting that the General District Court is the very lowest court in Virginia, hearing little more than misdemeanors and small dollar civil suits. So it’s unlikely that a gay rights issue could even come before Thorne-Begland if he joined this court.

Newly Confirmed Ninth Circuit Judge Jacqueline Nguyen

According to the Federal Judicial Center, Presidents Bill Clinton and George W. Bush both had very similar judicial confirmation rates — 201 lower court judges were confirmed during Clinton’s first term, and 204 judges were confirmed under Bush. President Obama, by contrast, has seen only 142 judges confirmed so far according to the FJC’s data — or less than four judges for each month of his presidency. In order to catch up to his two predecessors, Obama will need to double that rate to about 7.5 judges a month for the rest of his current term.

The recently completed deal, however, proves that this rate is achievable. Indeed, 7.5 judges a month is almost exactly the rate of confirmations achieved under this deal. There is simply no reason why the Senate cannot repeat its recent performance and catch up to a normal rate of confirmations by the time either Obama or Mitt Romney takes the oath of office next January.

According to new data by the Administrative Office of the U.S. Courts, however, most judges are not extending this opportunity to minorities:

The decrease for African-American clerks between fiscal years 2006 and 2010 was most pronounced, with a decline from 3.5 percent of appellate level clerks in 2006 to 2.4 percent in 2010, the new report states. The number of Hispanic appellate level clerks dropped from 3.1 percent to 2 percent during the same period.

At the district court level, the percentage of African-American clerks declined from 3.5 percent to 3.2 percent, while Hispanic clerks remained steady at 3.3 percent.

This latest breakdown of law clerks by race shows African-Americans fill fewer of those spots now than they did in 2000.

Federal judges obviously wield enormous power. They have broad discretion to decide how many years a person will spend in prison. They can breathe life into essential protections for workers and consumers — or invent new ways to immunize corporations from the law. And they can shape how our Constitution itself is understood. Among other things, it is very unlikely that the frivolous constitutional argument against the Affordable Care Act would have picked up any steam if two federal district court judges had not handed down opinions legitimizing this view.

Yet a judge’s power to shape the legal profession by hiring law clerks should not be neglected as an exercise of power. When judges hire minority clerks, they welcome these lawyers into the highest eschelons of a profession that remains dominated by white attorneys. Nor is the impact of this power limited to racial diversity. When a federal judiciary that remains dominated by Republican appointees disproportionately doles out elite clerkships to conservative lawyers, it shifts the upper reaches of the legal profession rightward.

Yesterday afternoon, a federal trial court in Texas granted a preliminary injunction preventing the state from cutting off women’s health funds to Planned Parenthood. The trial court’s opinion was written by Judge Lee Yeakel — a George W. Bush appointee — and it is 24 pages long, including substantial analysis of difficult constitutional doctrines such as the scope of the First Amendment right to free speech and the “unconstitutional conditions” doctrine. Significantly, the Bush-appointed trial judge was concerned that Texas stripped funds from Planned Parenthood because it disapproved of the organization’s advocacy in favor of women’s health — a direct attack on Planned Parenthood’s First Amendment rights if Yeakel is correct.

This morning, less than 24 hours after Yeakel handed down his decision, Judge Smith handed down a two sentence decision of his own:

IT IS ORDERED that appellant’s motion for stay pending appeal is GRANTED pending further order of this court. This order is entered by a single judge pursuant to FED. R. APP. P. 8(a)(2)(D).

Several things are significant about this very brief order. First, Judge Smith is a court of appeals judge, and it is very rare for an appeals judge to act alone in this way. Federal appeals courts almost always act as three judge panels, and for very good reason. Judge Yeakel is no less a federal judge than Judge Smith, and he is no less competent that Smith to interpret the Constitution. A court of appeals’ legitimacy generally flows from the fact that it brings more minds to a legal question than a trial court — but this cannot happen when a single judge acts alone.

It is true, as Judge Smith notes, that the Federal Rules of Appellate Procedure permit a single judge to stay a lower court’s decision, but that rule only permits the judge to do so in “an exceptional case in which time requirements make that procedure impracticable.” It’s not at all clear what kind of exceptional time constraints justified allowing Judge Smith to act alone here rather than first consulting with two of his colleagues before issuing this unusual order.

More importantly, it’s unlikely that Smith gave his order much thought at all before handing it down. Judge Yeakel handed down his order weeks after this case was filed, and he produced a 24 page explanation of why it was justified. Smith spent, at most, a few hours — and he offered no explanation whatsoever.

If nothing else, today’s order highlights the foolishness of Smith’s partisan tantrum several weeks ago. Unusual orders — even unusual orders handed down by single judges — are sometimes justified even if the legal reasoning behind such an order is not immediately apparent. Nevertheless, the legitimacy of such orders flows from the public’s trust that they are motivated by obedience to the law and not by partisanship, ideology or personal grievances. Judge Smith thumbed his nose at that trust when he lashed out at Obama last month, and undermined the legitimacy of the entire judiciary in the process.

This tradition, however, does not exactly have a longstanding pedigree. During the Reagan and the first Bush Administration, the blue slip tradition did indeed allow home state senators to block a judicial nominee, but only if both of these senators agreed. Indeed, this rule remained in effect until 1995, when Senate Republicans unilaterally changed it to make it easier to block President Clinton’s nominees with only one objecting senator — only to change back to Reagan Era rules once George W. Bush took office.

Heller now seems to think that, because a Democratic president is back in office, he should have the same power to unilaterally veto nominees that didn’t exist under Ronald Reagan or most of George W. Bush’s term. Fortunately, Senate Majority Leader Harry Reid (D-NV) apparently thinks otherwise:

Reid, the Senate majority leader, said he plans to ask Leahy to bypass the blue slip process in this case and move forward with the Cadish nomination. He said the two could meet Thursday.

Reid said his staff has compiled clippings and other material on Cadish that he plans to show to Leahy.

“Leahy is a traditionalist around here,” Reid said. “I’ve gotten all the articles about this together and am going to visit with Pat and go over it, but I don’t think he will do it.“

There’s nothing wrong with being a traditionalist, but there’s also no real tradition giving Heller a unilateral veto over nominees. If one set of rules were good enough for Ronald Reagan, than they should be good enough for Barack Obama.

Needless to say, Senate Minority Leader Mitch McConnell (R-KY) is not happy that President Obama thwarted his power grab, so he’s once again trying to get judges to roll back decisions made by the people the American people elected to govern:

Senate Minority Leader Mitch McConnell (R-Ky.) said Tuesday that his conference has hired conservative attorney Miguel A. Estrada to file a brief in a case brought by Noel Canning, a Washington state businessman who operates a bottling company. Canning plans to challenge an NLRB ruling that said his company must establish a collective bargaining agreement with a labor union.

McConnell once again called Obama’s appointments an “unconstitutional action” and said his colleagues had been seeking a strong legal challenge to the appointments to support.

McConnell’s legal arguments are not strong. Although the Senate minority claimed that it could thwart recess appointments by having a single senator hold a pretend Senate session every three days, the Senate simply does not have the power to block appointments simply by hosting a meeting in the Neighborhood of Make Believe. As two of President George W. Bush’s top constitutional advisors explained in 2010, the Senate is in recess when it is “not capable of acting on the president’s nominations.” Because no nominees can actually be confirmed in a make believe session, these fake sessions do not defeat Obama’s recess appointment’s power.

Moreover, even if they did count as real sessions, it’s not at all clear that the Senate was not in recess during the three days between the pretend meetings. As the highest federal court to consider the question explained in Evans v. Stephens, “[t]he Constitution, on its face, does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause. And we do not set the limit today.”

Ultimately, however, this case is likely to turn less upon what the Constitution actually permits than on the outcome of the high-profile challenge to the Affordable Care Act. The case against health reform is significantly weaker than the case against Obama’s recess appointments. Nearly 200 years of Supreme Court precedent conclusively establish that the Affordable Care Act is constitutional, not to mention the text of the Constitution itself. In the words of Judge Laurence Silberman, a leading conservative who received the Presidential Medal of Freedom from George W. Bush, the case against the ACA has no basis “in either the text of the Constitution or Supreme Court precedent.”

Yet despite the fact that the health care challenge is so weak that it borders on frivolous, several of the Supreme Court’s conservatives appeared more interested in doing the Republican Party’s bidding than they did in actually following the law when the health care case was argued last month. If the justices ultimately strike down the Affordable Care Act, they will send a clear signal to every judge in the country that the Constitution does not apply any more when there is an opportunity to embarrass Barack Obama.

So Mitch McConnell might have a chance of winning his case after all — at least if the judiciary decides to put partisan politics ahead of the law.

Fortunately, even most of Lee’s fellow Republican senators deemed Lee’s tantrum to be overblown. Last February, when the Senate voted to confirm Judge Cathy Ann Bencivengo shortly after Lee announced his obstruction campaign, only five of Lee’s colleagues joined him. Yesterday, the Senate voted to confirm Judge Stephanie Thacker to a seat on the United States Court of Appeals for the Fourth Circuit, and Lee was only able to convince Sens. Jim DeMint (R-SC) and David Vitter (R-LA) to join him in opposition. Even Tea Party stalwarts like Sen. Rand Paul (R-KY) who joined Lee in opposing Bencivengo, broke with Lee on Thacker.

Hitting President Obama for questioning the wisdom of judicial activism is especially bold for Rep. Smith, who one year ago this week said almost the exact same thing about marriage equality: “Who in our system of government has the power to decide fundamental questions like what marriage means; unelected judges, or the people?” Nor was this the first nor last instance of Smith engaging in the very same attacks on the courts that he accuses President Obama of:

On Marriage Equality: Immediately after a federal judge in California ruled Proposition 8 unconstitutional in August 2010, Smith issued a statement attacking him for failing to remain impartial — claiming that “Judge Walker’s ruling places personal political ideology above the right of the people to pass laws.” And then last year, after President Obama announced that his administration would no longer seek to defend the constitutionality of the Defense of Marriage Act, Smith lambasted judicial activism during a hearing of the Subcommittee on the Constitution.

On Religion: Smith, along with two other House Republicans, was the driving force behind two amendments passed in 2003 that specifically forbade the enforcement of the ruling of a federal circuit court. A working group was co-created by Smith to “once and for all reassert [the] authority of Congress, and remind the judiciary of who they are, as outlined in the Constitution.”

On Judicial Activism of Any Kind: “Judges continue to substitute their own political views for the law, and we must push back,” Rep. Smith told attendees of the Judeo-Christian Council for Constitutional Restoration conference in 2005.

It’s unclear what in the last few weeks has led Rep. Smith to fully embrace the authority of the courts after years of threatening to defund the enforcement of their rulings, alleging misconduct and using every opportunity to invoke “judicial activism” as the greatest threat to our democracy. And Rep. Smith was equally unperturbed when Republican presidents George W. Bush, Ronald Reagan and Richard Nixon all criticized the judiciary during their administrations.

He declined to answer a question about President Barack Obama’s Monday remarks that it would be an “unprecedented, extraordinary step” for justices to overturn the challenged federal health care law.

“We don’t respond to criticism,” Scalia said. “Judges use what’s known as the rope-a-dope trick. It’s judicial tradition.” When the questioner pressed Scalia on who would provide checks and balances to the president, he said that, “We have three branches. They check and balance each other.”

Obviously, Scalia’s comparison between judicial silence and Muhammad Ali’s tactic of tricking his opponent into tiring himself out is not intended to paint the Court’s critics in a favorable light. Nevertheless, it is telling that even the Court’s most strident conservative will not mimic Smith’s transparently partisan tactics.

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.”

That letter is due today. Whatever it says, however, the Republican Judge Jerry Smith clearly needs a reminder that there was absolutely nothing unusual about President Obama’s comments. Need proof? Here’s President George W. Bush saying exactly the same things Obama did, over and over again:

Nevertheless, Bush’s former adviser Karl Rove hypocritically called Obama a “political thug” this week for his remarks about the Supreme Court.