Remember the racist Montana federal district judge Richard Cebull. Now there's an even bigger jerkass who crawled out from under a rock in the federal Fifth Circuit Court of Appeals, Judge Jerry E. Smith, appointed by St. Ronnie the Blessed.
Here's this asshole's courtroom style:
Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?
Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.
Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.
That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review. And that’s not a small matter. So I want to be sure that you’re telling us that the attorney general and the Department of Justice do recognize the authority of the federal courts through unelected judges to strike acts of Congress or portions thereof in appropriate cases.
Kaersvang: Marbury v. Madison is the law, your honor, but it would not make sense in this circumstance to strike down this statute, because there’s no –
Smith: I would like to have from you by noon on Thursday…a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.
This was not a statement in the record, and the president, even though he is the president, does not represent the United States of America before the courts. It was completely improper for alleged judge Smith to demand an explanation of this nature from the U.S. attorney who was responsible for the case.
This was clearly an effort to embarrass the president. It was political and I think worse yet it was bullying, as the U.S. attorney would have to comply under threat of contempt.
UPDATE: Per the comments, it's been suggested that this would be a splendid opportunity for the administration to drive home its point about the reasons why this type of legislation, dealing with broad questions of policy and economic reform, is immune from review under the precedents set from 1937 to 1942. I agree!