By: Paul S. Marchand
Summary: Eric Holder “pwned” a petulant panel of Fifth Circuit judges with his lawyerly, professional, response to their outburst about the President’s comments on the Affordable Care Act, showing who was the adult in the discussion. Unfortunately, the panel’s conduct raises issues that may need to be investigated, or even made the subject of articles of impeachment.
On Monday, the President, addressing the issue of the Supreme Court’s review of the Affordable Care Act (“Obamacare,”) urged the Court to give deference to the fact that the legislation had been passed by majorities in both houses of Congress. Responding to a reporter’s questions, the President said "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And 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."
As has been noted all over the mainstream media, on the Internet, and in the blogosphere, the President’s remarks apparently got under the skin of a three-judge panel of the Fifth Circuit Court of Appeals in New Orleans, hearing arguments in Physician Hospitals of America v. Sebelius.
Leading the charge, Circuit Judge Jerry Smith, ordered the government’s lawyer to submit, by noon Central Time yesterday, a letter of no less than three pages, single spaced, setting forth the Justice Department’s position on judicial review. The court’s order was not, mind you, based on any position the government had taken in the litigation, but on the basis of an extrajudicial statement, not made in the case pending before the court, that happened to have been made by President Obama.
Yesterday, Attorney General Eric Holder responded, timely, and in accordance with the directive from the bench, to the Court’s ridiculous order. The A.G.’s letter can be found on CNN at the following link http://i.cdn.turner.com/cnn/interactive/2012/04/us/doj.letter.pdf?hpt=hp_t2
The A.G.’s letter --written in a dry, professional, objective, legal tone-- contains an analysis that would be agreed to by all but the most hyper partisan right-wing legal scholars. It properly defends the president, as well as his administration, while carefully avoiding even the appearance of any form of (amply justifiable) irritation at having to waste taxpayer resources responding to a petulant and childish outburst more notable for its partisanship than for its judicial restraint.
In short, Atty. Gen. Holder’s letter resembles the patient, long-suffering response of a mature adult to an adolescent outburst. In the language (ironically enough) of adolescent computer gamers, the Fifth Circuit panel has been well and truly “pwned” by the Attorney General. Mr. Holder’s letter, though respectful to the nth degree, nevertheless demonstrates who is the professional and who are the partisans in this transaction.
Within the legal profession, both conservatives and liberals alike were taken aback by the Fifth Circuit panel’s action. Not only did the panel’s extraordinary order create an impression of inappropriate partisanship on the part of the three judges, especially given the Judge Smith’s use of the politically charged word “Obamacare,” and not only did it raise questions about the judicial temperament of the three jurists, but -- perhaps even more ominously -- it left both lawyers and laity alike wondering just whether there are any limits to the ability of the court to seek out and “punish” extrajudicial utterances that might in some way offend judicial amour propre.
A couple of points are worth considering.
First, the Constitution of the United States prohibits a federal appeals court from reviewing any matter “other than at common law.” This means, first, that a federal appeals court does not set to review factual determinations, but must confine itself to the facts that appear on the record of the trial court. Second, it should also mean that the federal appeals court does not sit to resolve legal issues that may be discussed outside of the context of the litigation before it.
In simple terms, that means the court should have no business ordering government lawyers to brief and justify the legal implications of remarks made by the President in the course of the President’s execution of his duties in that office.
Second, the power of any court to punish a contempt is strictly limited. So far, no one has argued -- at least not seriously -- that the President’s responses to reporters questions about the Supreme Court’s review of the Affordable Care Act came anywhere remotely close to constituting an actionable contempt. Nevertheless, without any apparent legal justification for doing so, the three-judge panel of the Fifth Circuit has apparently seen fit to engage in a new and highly dangerous form of judicial activism, that of inventing a new form of de facto “contempt.”
This is a concept which every American, whether lawyer or layperson, should consider extremely dangerous. Does this mean, for example, that if one of the three judges on the Fifth Circuit panel were to read this blog entry and take offense to it that I, or some lawyer arguing before the Fifth Circuit who might happen to agree with me, could be forced to perform some time wasting task similar to that inflicted upon the Justice Department?
Does the court have the right, if its amour propre has been offended, to engage in activity which has a real potential for chilling otherwise constitutionally protected speech?
Does a court have any legitimate authority, say, if a judge or judges do not like a remark uttered by the President or the Secretary of Defense, for example, concerning the prosecution of our operations in Afghanistan, to force a government lawyer to justify the President or SecDef’s remarks in a written document, and thus effectively impose judicial second-guessing on the conduct of a war?
We rely upon our courts to function as impartial “umpires,” as Chief Justice John Roberts so famously declared. It is, in the Roberts analogy, the function of a court to call balls and strikes. While it does not yet appear that that the entire federal judiciary has become politicized, it nevertheless does seem that the longstanding tradition of scrupulous nonpartisanship and impartiality may be disappearing from some of the most important tribunals of the federal judiciary.
From the Rehnquist Court’s politically motivated decision in Bush v. Gore, to the Roberts Court’s decision in Citizens United, to the apparent willingness of at least four justices to overturn the Affordable Care Act on the basis of Tea Party rhetoric, Americans have seen their Supreme Court appearing to be less interested in calling balls and strikes than in throwing the game in favor of a particular political party. Does it come as a surprise that significant majorities in polls taken on the issue believe that the Supreme Court will make his decision on the affordable Care Act on the basis of politics, not law?
Perhaps we should give the three-judge panel the benefit of some small degree of doubt; perhaps Judge Smith and his colleagues were simply being petulant. Perhaps one of them had had a poor po’boy the previous evening, or a bad beignet at breakfast, but even so, mere judicial agita should never be an excuse for judicial misconduct. But if their petulance was the kind of right wing rant it appears to have been, then such misconduct could certainly constitute potential grounds for investigation or even impeachment.
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Paul S. Marchand is an attorney who lives and works in Cathedral City, CA, where he served two terms on the City Council. The views expressed herein are his own, and are not intended as, and should not be construed as, legal advice.
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