Steven Pinkert, a lawyer in Miami, Florida, was outraged when he heard the following story:
On Monday President Obama publicly defended the constitutionality of the Affordable Care Act. He said, “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.”
Then yesterday, during an argument on another aspect of the health care law unrelated to the constitutionality of the Affordable Care Act, Judge Jerry Smith of the United States Court of Appeals for the Fifth Circuit said to the Justice Department lawyer before him, “Does the Department of Justice recognize that federal courts have the authority, in appropriate circumstances, to strike federal statutes because of … constitutional infirmities?” Judge Smith went on to say: I’m referring to statements by the president in the past few days to the effect, and I’m sure you’ve heard about them, that it is somehow inappropriate for what he termed “unelected judges” to strike acts of Congress that have enjoyed — and he’s referring of course to Obamacare…”
Then Smith demanded a letter from the Justice Department lawyer of “no less than three pages, single spaced,” due on Thursday, explaining the president’s remarks and instructing the lawyer to consult with the attorney general!
This is an outrage. First, the demand by Judge Jerry Smith had nothing to do with the issues before him. Second, even if the issue was related, how are the President’s remarks relevant (and they are hearsay)? Third, the derisive use of the term Obamacare – this is a lack of professionalism on the part of the Court – to say the least. And by using the term Obamacare the court has signaled that it is biased against the Affordable Care Act – an issue therein which is before it. I am ashamed that one of our US Courts of Appeal (the 5th Circuit no less) has gone down this path. These Courts are the second highest courts in our country and we expect thoughtful and circumspect jurisprudence. I suspect the Justice Department should seek recusal from this Court and then appeal the recusal if denied to the US Supreme Court. It was as if Judge Smith was trying indirectly and without notice to hold our President in contempt. Judge Smith exhibited an abuse of discretion and power. I wonder if impeachment is a consideration.
Steven Pinkert believes that Judge Smith abused his power. Judge Smith – though lifetime appointed – is not above the law, the Court’s law.