What exactly does it mean that Judge Jerry Smith “ordered an explanation of no less than three pages by noon on Thursday”, where the Justice Dept must explain Obama’s comments regarding how the Supreme Court shouldn’t strike down the health care law? I understand the general principle of being subpoenaed to appear before Congress, or a court, etc. in matters where a possible crime is being investigated. But ordering an explanation of a simple statement by the president? What exactly is going on here? Not to suggest anything nefarious, mind you. This just seems a bit strange to me.
If you’re a litigant in an ongoing case, and even before the judge has made his or her decision, you start making statements on the courthouse steps implying you’d question that judge’s impartiality and legitimacy if the case doesn’t go your way – I can easily imagine that judge calling you back in to explain yourself.
Well, of course. How obvious. I’m a bit embarrassed to have asked the question.
In any case, thanks for a quick, concise answer. It’s so wonderful to have a forum such as GQ, where a factual answer can be gotten quickly, thus making it unnecessary to search through endless pages of threads in, say, GD or IMHO, which may or may not have the answer one is looking for!
Yeah, I guess that’s what struck me as a bit weird. The executive branch of course makes appointments to the judicial, but it is still a separate branch.
Sure, but the executive branch (in the form of the DoJ) is a litigant in this case. And that means the president, who is in charge of the DoJ, is the personification of the DoJ’s lawyers’ “client,” as it were.
Nonetheless, most people seem to be in agreement that the judge has overstepped the bounds of decorum in making a fuss over a political speech that was only tangentially related to the issues being litigated.
The federal government is party to the case the judge is hearing right now. Obama is the Executive, the singular person in charge of the Executive Branch.
Suppose Obama said, in a speech, “Regardless of what this whacked out panel of judges decides, let me assure you: we will ignore it. How many armed divisions does that judge command, anyway?”
Do you believe the judge would have no jurisdiction in the case in front of him to ask the lawyers if they recognize the authority of the court?
To answer your last question first, no, the judge would have no jurisdiction to ask if the lawyers recognized the authority of the court. Its not his case, it belongs to the SC.
And speaking of branches, I don’t believe even the USSC has any authority to compel Obama to explain his words to them in front of the bench unless the formally subpoena him personally, which I doubt they would do because they have no legal reason to do so. Obama’s representative is Verrilli, and any questions can be directed at him. Obama neither has to respond or acknowledge anything the 9 justices have to say to or about him. He is a politician, and as we have seen with the GOP, a politician can say any wild ass thing he wants to. He only answers to the voters unless he does something actually illegal
Well, I suppose I can imagine a case in which a Judge is justified in asking the lawyers whether they recognize the authority of the court.
But
a) that wild hypothetical doesn’t bear much relation to what Obama actually said;
b) I’m not convinced that, even in the hypothetical you posed, a Judge has any legal justification. Isn’t an appeals Court supposed to only rule on legal questions raised in an appeal, based only on facts in the record of the original trial? Even if the Judge had a legal way to take note of the hypothetical unofficial remarks, what possible bearing could it have on the legal issue raised in the appeal?; and
c) in actual fact, the Judge did ask the lawyers, who said “Of course we recognize your authority.” At which point the Judge said “I don’t care what you say, I want my little homework assignment done”.
So, perhaps there might be a more precise word than ‘jurisdiction’, but it’s not a ridiculous question.
Well it’s only fair - after the endless Federal court sessions where the Judges demand explanations of the terms “Activist Judges” and “Legislating from the bench” uttered by senior Republican party officials, sitting Republican Governors, Republican US Representatives speaking from the floor of the House, Republican US Senators orating from the well of the Senate, and by sitting Republican POTUSes. I would hate to think that the Federal Judiciary, the last bastion of a citizen’s rights, had become so partisan that a single politicized utterance from an elected official of one party was given more weight than an innumerable list of attacks by the other party on the entire framework of separation of powers. It would be terrible if so esteemed an institution as a US Federal Bench has become so unbalanced.
The judge could find the DoJ lawyers in contempt in that case. But DoJ has already announced that they are going to comply with the request so speculation regarding an interbranch showdown is moot. We’re not watching another US v. Nixon here.