Fifth Circuit Judges Now In Full Wingnut Mode

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This is beyond bizarre. A three-judge panel of the 5th Circuit Court is hearing a challenge to Obamacare, but when a Justice Department lawyer began arguments this morning she was stopped short:

Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law. The DOJ lawyer, Dana Lydia Kaersvang, answered yes — and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became “very stern,” the source said, telling the lawyers arguing the case it was not clear to “many of us” whether the president believes such a right exists….Smith, a Reagan appointee, went on to say that comments from the president and others in the Executive Branch indicate they believe judges don’t have the power to review laws and strike those that are unconstitutional, specifically referencing Mr. Obama’s comments yesterday about judges being an “unelected group of people.”

Despite the fact that Kaersvang immediately acknowledged that courts can indeed strike down laws, the panel ordered her to “submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power.”

Seriously? These judges are acting like a middle school teacher handing out punishment to a student because of something her father said at a city council meeting the night before. I’m a little hard pressed to finish up this post on quite the right note of jaw-droppitude, but luckily an attorney friend from the South just emailed me about this. Here’s his take:

This is meant to embarrass the President. Full stop. Jesus, this is getting scary. It just seems like all out partisan war brought by the Republicans from all corners of the Government. They want to push it as far as they can. And then further. It’s incredibly destructive.

Somebody on the right needs to speak up about this. It’s an outrageous abuse of judicial power.

UPDATE: Allahpundit speaks up. Judge Smith, he says, was “honked off” at Obama’s Rose Garden suggestion that overturning ACA would be “unprecedented”:

No true-blue Warren-Court-loving lefty like The One would ever seriously impugn judicial review. And the Fifth Circuit knows it. What they’re doing here is humiliating him as a way of getting him to stop the demagoguery, with the letter acting as the equivalent of a kid writing on the blackboard as punishment after class. “I will not question Marbury v. Madison, I will not question Marbury v. Madison, I will not question…”

Just what we need. Conservative judges getting “honked off” at a presidential speech and deciding to dish out a little extrajudicial humiliation just to make their honked-offitude clear.

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THE BIG PICTURE

You expect the big picture, and it's our job at Mother Jones to give it to you. And right now, so many of the troubles we face are the making not of a virus, but of the quest for profit, political or economic (and not just from the man in the White House who could have offered leadership and comfort but instead gave us bleach).

In "News Is Just Like Waste Management," we unpack what the coronavirus crisis has meant for journalism, including Mother Jones’, and how we can rise to the challenge. If you're able to, this is a critical moment to support our nonprofit journalism with a donation: We've scoured our budget and made the cuts we can without impairing our mission, and we hope to raise $400,000 from our community of online readers to help keep our big reporting projects going because this extraordinary pandemic-plus-election year is no time to pull back.

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