The faux outrage at Barack Obama’s supposed attack on the Supreme Court hit a new low yesterday. I’m all for recognizing that the judiciary is a political branch. But that doesn’t mean judges should get their talking points from Fox News.
To recap: A Fifth Circuit Appeals Judge, Jerry Smith, “demanded a letter explaining whether Attorney General Eric H. Holder Jr. believes federal judges have the authority to strike down federal laws,” in response to Obama’s claim that it would be “unprecedented” if the health law were overturned.
As Kevin Drum said, Smith was “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.”
This episode, along with last week’s appearance of broccoli tyranny in the questions of conservative Supreme Court justices, suggests that perhaps Federalist Society judges are spending a little too much time with Fox News and the rest of the Republican partisan press and not enough time with, you know, law books. Obviously the Obama administration hasn’t hinted at any challenge to judicial review.
This is looking a lot like our old friend, the conservative information feedback loop, in which Republican party actors get all their information from conservative media and from talking to each other, leading them to give credence and even legitimacy to the wildest of false claims.
What’s more, all the fuss about Obama’s suggestion that the Court might not want to toss out a major federal law for the first time in decades without really good reasons seems misplaced, when you consider that ... a major plank in the GOP platform for the last few years has been to strip the federal courts of jurisdiction over entire areas of federal law.
Newt Gingrich is making this a major portion of his campaign right now. Another onetime major presidential candidate, Rick Perry, has vowed to disregard negative Supreme Court rulings.
Let’s hop into the wayback machine all the way back to December 27:
Republican presidential candidates Newt Gingrich and Rick Perry said during a GOP candidates forum Tuesday night that the Supreme Court should not be able to challenge anti-abortion measures.
Gingrich said legislation he would support as president would prohibit judicial review. Perry simply asserted that he would ignore a negative ruling by the Supreme Court in such a case.
In other words, there really is a current problem with one political party promoting radical actions to destroy judicial review, and it isn't the president's party. When Obama threatens to ignore a negative ruling from the court or to include (as Gingrich says he would) an “exclusionary” clause in bills in order to supposedly make them non-judiciable — neither of which have happened yet — then we have something to talk about. In the meantime, as Adam Serwer suggests: “Maybe Judge Smith should get his own blog at RedState.”