I watched it too but the controversy was downplayed (as usual) so this is a good thing. Unless one doesn’t care for the spotlight.
Can someone please tell Obama?
[moderator note]
JasperST, political potshots are not allowed in the GQ forum. Please do not do this again.
[/moderator note]
The Justice Dept. already said that they will write the letter for the judge. Just heard it on the news when driving.
Which is what I predicted in my first post in this thread. 
The remarks you quote were an observation on the general claim that a “court can do pretty much what it wants,” which is true in a way, but since judges are usually just sedentary, bookish, middle-aged (or older!) men and women without control over an army or a police force (at least not directly), also not entirely true. The main point being that the judiciary’s authority flows from its persuasive abilities and perceived integrity and credibility.
The news reports say that Holder’s response was that the Justice Department would respond “appropriately” to the judge’s request. Considering that this Texas judge was demanding a 3 page single-spaced treatise on why they were wrong and he is right, what the Justice Department might consider an appropriate response is still open to question, I would think.
Here’s what Obama actually said:
“With respect to health care, I’m actually – continue to be confident that the Supreme Court will uphold the law. And the reason is because, in accordance with precedent out there, it’s constitutional. That’s not just my opinion, by the way; that’s the opinion of legal experts across the ideological spectrum, including two very conservative appellate court justices that said this wasn’t even a close case. . . . Ultimately, 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 – that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.”
So I think it’s pretty clear that Obama was just saying that the law is constitutional and that he is confident that the Supreme Court will not overturn a constitutional law passed by Congress.
It’s still clumsy phrasing, because the implication is that overturning the law would be unprecedented (even though he clearly didn’t mean that). He knows better, and I have to assume it was a prepared statement because he knew the topic would come up.
nm
[quote=“Gary “Wombat” Robson, post:22, topic:617777”]
[moderator note]
JasperST, political potshots are not allowed in the GQ forum. Please do not do this again.
[/moderator note]
[/QUOTE]
I guess I got confused with all the judge Smith bashing going on.
Yes, it will be entered into the record in the court case, and therefore public.
Anybody want to bet that some people in the Justice Department are having fun composing a letter where reading the first character vertically of those single-spaced lines makes up a recognizable phrase? And probably not a complimentary one!
I imagine that it has crossed their minds. This appellate judge is taking an off the record free speech comment made by citizen and chief of the executive branch and inserting it into the appellate proceedings when such is highly improper. Had Obama been in court his statement would have been correct and not a contempt of any kind. This is just an jerk misbehaving in his official capacity because he doesn’t understand the parameters of his job.
People like this should not be judges. People who make statements like this in open court should not be lawyers. Had he been a California judge and done this, he would be in for a long disciplinary process and rightly so. Probably wouldn’t be removed for a first offense, but California removes judges for repeated offenses. As a federal judge he will undoubtedly get away with this as their discipline process is crap.
[moderating]
I think we’re past the point of GQ answers to the original question, so (as predicted) I have moved the thread to Great Debates.
[/moderating]
I think that’s a bit harsh.
Imagine a federal judge hearing a case again, oh… say British Petroleum, for the oil spill, and after a hearing one day, the president of BP announces that he’s sure no unelected judge will tell his company what’s safe and not safe in drilling practices, because the American people need oil and they’ve voted with their pocketbooks to endorse gulf drilling.
Would there be any room for such a judge to send a message via a similar briefing request?
In post #4, I agreed the judge was out of line. I do not, however, agree he’s a jerk misbehaving in his official capacity because he doesn’t understand the parameters of his job.
Is there a difference between a briefing request to gather information, and the type of request this judge made, which seems to be an attempt to punish?
I dunno about you, but I don’t see what relevance the hypothetical BP president’s comments would have to the pending case. If anything, a judge has a greater interest in determining whether Obama’s comments reflect a change of position by the executive branch, because he can unilaterally change the Justice Department’s position.
Well, it’s not a particularly harsh punitive measure. It’s not a fine, or an adverse evidentiary ruling. And while it’s obviously not true, there is a certain amount of cover in the judge saying, in effect, “You’re asking me to rule on this case, and your boss is announcing to the world that I can’t rule any way except his; does the government understand that I have jurisdiction here and the power to rule within my discretion?”
So I’m not sure it can be analyzed as a punishment, given the availability of a piously-delivered cover story about jurisdiction.
I do agree, however, that it is punitive in nature. Just not all that harsh – writing a three page letter might be a punishment for a ten year old but in terms of real world negative effects, it doesn’t hurt the Justice Department lawyers at all.
Hell, we’ve written three pages on the issue for fun.
Bricker, of course, has a slightly different view of fun than most.
I don’t think Czarcasm is referring to the letter itself as a punishment; I assume he knows that most second-year law students can give you three double-spaced pages on judicial review without even cracking a book. The punishment, such as it is, is what amounts to a public dressing down for the Justice Department, via its representative Ms. Kaersvang.
If we want to get technical…
Obama said nothing about any court except the Supremes, I read. And not about anything except the ACA. In general, Obama said overturning a duly constituted and legally passed law was judicial activism, which conservative commentators abhor when convenient.
It does not look like Obama criticized judge Smith directly, nor personally, nor commented explicitly on the case before him, nor appears to have changed the government’s position that ACA was constitutional, nor suggested that unonstitutional laws should be left intact - nor anything that would warrant the response from Smith. The matter of Obama and his view on SCOTUS and their case, as far as we can tell, was not mentioned in court as a supporting argument for anything. The Administration’s view of their own case and their position on it has not changed.
So the question is, “what’s up with Smith’s tantrum?”
Why is a position paper necessary?
(bolding mine)I believe he called for three single-spaced pages.