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Star-Telegram.com

5th Circuit Judge Jerry Smith goes way outside the record

Posted Wednesday, Apr. 04, 2012

By Linda P. Campbell

lcampbell@star-telegram.com

campbell The 5th U.S. Circuit Court of Appeals has a history of bold judges.

Judges on that court during the 1960s became legendary for enforcing justice even when they faced personal peril and ostracism.

As Jack Bass, author of Unlikely Heroes, has written, "Judges Elbert P. Tuttle, John Minor Wisdom, Richard T. Rives, and John R. Brown operated in the eye of a storm, making the Fifth Circuit Court of Appeals the institutional equivalent of the civil rights movement itself." (bit.ly/I2c8HF)

The Supreme Court gave lower courts little guidance for enforcing its 1954 ruling that racially segregated public schools were unconstitutional. But those long-since departed 5th Circuit judges, three of them Republican appointees and from Southern states, "translated it into a broad mandate for racial justice and equality under law," Bass wrote.

Judge Jerry Smith, a member of the 5th Circuit since President Reagan appointed him in 1988, is no shrinking violet. But his bold move this week was to spar with President Barack Obama over his remarks at a news conference.

During Tuesday arguments in a case involving a narrow provision of the Affordable Care Act, Smith unilaterally directed a Justice Department lawyer to submit a three-page, single-spaced document about judicial review and "make specific reference" to Obama's statements.

That's even though the president wasn't talking about the New Orleans-based 5th Circuit or the case before that court.

On the audio of the arguments in Physician Hospitals of America v. Kathleen Sibelius (Listen: 1.usa.gov/HgyubA.), attorney Dana Lydia Kaersvang sounds taken aback when Smith asks her about the president's remarks on "Obamacare" and whether he was challenging federal courts' power to strike down laws passed by Congress.

The issue before the three-judge appellate panel focuses on Medicare spending at physician-owned hospitals, not the broader constitutional questions being decided by the U.S. Supreme Court, which is what Obama was addressing.

Referring several times to "Obamacare," the derisive name used by opponents of the Affordable Care Act, Smith said Obama's remarks troubled a lot of people. And, without consulting his two colleagues, Smith said he wanted in writing that the Justice Department recognizes the federal courts' authority -- even though no one's challenging that authority in the case.

It's pretty amusing how the political right, which for years has chastised "activist" federal judges for disregarding the will of the people and their elected representatives -- John Cornyn? George H.W. Bush? Mitt Romney? You can look it up -- now hyperventilates when Obama throws their rhetoric back at them.

If you read the official transcript, Obama starts his answer to a reporter's question by saying he's "confident" the Supreme Court will uphold the recently argued act because it's constitutional. (1.usa.gov/HFAaX4)

Eventually, Obama gets around to the exaggeration that overturning a law "passed by a strong majority of a democratically elected Congress" would be "an unprecedented, extraordinary step."

Surely he knows that's careless hyperbole. The man once taught constitutional law, remember.

But this part I take as an argument against "activism," not a challenge to judicial authority: "I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint -- that an unelected group of people would somehow overturn a duly constituted and passed law."

He's not calling the Roberts court a bunch of unprincipled activists. Not directly anyway. He's repeating what has been the gripe of those who would appoint "conservative" judges who "interpret, not make" the law, not "liberal" judges who act as "super-legislatures."

Senate Minority Leader Mitch McConnell's characterization of Obama's comments as an "attempt to intimidate the Supreme Court" is milk-shooting-out-your-nose laughable. Isn't McConnell's job to coerce, browbeat and menace fellow GOPers into line?

It's too preposterous to imagine Antonin Scalia, Clarence Thomas or even Ruth Bader Ginsburg quaking before even the world's most powerful elected official. They have life tenure; he can get voted out.

And what's Obama going to do to them if they don't side with him, not send an invite to the State of the Union?

However the Supreme Court rules on the healthcare law, politicians who agree with it will proclaim profound respect for the justices' work product. Those who dislike it will berate the court.

Those who lose will file new legislation. Those on the winning side will take it to the polls in November. And no one ought to be surprised by that.

Linda P. Campbell is a Star-Telegram editorial writer.

817-390-7867

Twitter: @LindaPCampbell

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