Remind me again why I’m supposed to have faith in the Burkean integrity of John Roberts and the gang:
Well, the entire blogosphere is talking about 5th Circuit judge Jerry E. Smith, who ordered the Justice Department to tell the court whether the Obama administration believes that Supreme Court has the right of judicial review (which the administration obviously does, as Judge Smith knows full well). I just want to note that according to a September 2000Baltimore Sun article, Judge Smith was seen as a possible Supreme Court pick for then-candidate George W. Bush
There’s a lot of hard-core wingers in the judiciary and they’re not going away. If you don’t think they’re going to flood the subway, you’re an optimist.
WHEN DID YOU STOP BEATING YOUR etc.
Usually it’s rightwingnutz that take matters into their own hands. I’m predicting we see some from our side of the aisle act out in a not passive manner soon. Generally I frown on that. Sadly, I wouldn’t feel too bad about it if they chose the correct targets.
Am I a hypocrite? Maybe. Maybe not.
Ruth Marcus would be fainting if a Democratic appointee had done this.
So last I heard, Dems are on track to lose the Senate and not win back the House. If that happens, even if Obama has the opportunity to appoint one or more Supreme Court Justices, is there any hope he can appoint someone even slightly left of Full Metal Wingnut?
Remind me when John Roberts showed some integrity.
Well, look at the bright side – at least Scalia isn’t Chief Justice.
It’s important to keep in mind here that it didn’t matter that Al Gore “lost” to W in 2000; that Kerry “lost” to W in 2004; that Obama beat McCain in 2008; or that the Teabaggers took the House in 2010. The outcome of the 2012 election won’t matter either because the two parties are the same. The only thing that matters is that I did not get everything I projected onto Obama in 2008.
comrade scott's agenda of rage
I can’t because I never suggested it in the first place.
The C+ Augustus (to use Charlie Pierce) Administration really was the modern Republican Party’s wet dream: they wrecked the economy, wrecked the gubmint and stacked the courts with wingnut judges who will be there for a generation. Roberts and Scalito will be the gifts that keep on giving.
To quote C3PO: “We’re doomed.”
quick question, i was caught by the “flooding the subway” line. does that come from something. Is it a cultural reference that I am just not getting?
also, totally unrelated, kudos on the gang of four post title from earlier. was not able to get that into the comments there. from one of my absolute favorite albums. EVAH. brought a smile to my face, and for that, i thank you.
divisionsvoters does the judiciary have?
I have been a litigator for almost 20 years, and I have been asking around my firm of litigators. Not one person has ever heard of a situation where a judge required someone to submit a brief with a MINIMUM length, like the “three pages, single-spaced” submission the DOJ is supposed to make to the Fifth Circuit. Maybe that seems like a trivial distinction to the non-lawyers, but to all the lawyers I’ve talked to it’s a huge red flag that the whole thing is about punishment rather than a legitimate request for a position paper.
In normal cases, if you can give the judge a straight answer in one paragraph they’ll love you for it.
OT, DougJ, did you hear that Arizona is going to make it illegal to be a troll on the internet?
Could be up to a Class 3 felony.
@Violet: I wouldn’t count the Dems out on either. They’re slightly favored to hold the Senate right now and it’s about even money on the House, with them drawing slowly ahead based on turnout expectations.
Bottom line, the more people vote, the more Democrats win. The GOP aren’t looking strong to turn out voters. The Dems are looking stronger each month.
@Violet: sure. of course. all you have to do is appoint someone with little to no paper trail. After all, that’s how the republicans do it.
I hope the President appoints a few more women and latinos just to sew up the underlying voting bloc.
Sorta along the same lines, the gun nuts are raising money for George Zimmerman’s legal defense.
Which he doesn’t need because he hasn’t been charged with any crime yet.
@comrade scott’s agenda of rage:
I thought you were quoting Mitt Romney, but then I recalled that it was expressed with emotion and realized it had to be C3PO.
GAH! FYWP strikes again. I can’t edit my comment. Both paragraphs are supposed to be in the blockquote. I forgot the stupid workaround underscore trick.
So does this mean that bills sponsored by Republicans will no longer be posted on Congress’s website?
Funny…conservatives railed about “unelected judges” crippling democracy for decades. Now they are Burkean heroes standing tall to thwart the Kenyan Marxist.
Fucking hate the GOP…
But he will be, because black people are the true source of power in this country.
I hope Obama talks about this absurd wingnut judge stunt. I think that would be the best response.
The Supreme Court should not be regarded as some mystical holy higher authority that can do no wrong.
The wingnuts have been hypocritically asserting that (when they like a SCOTUS decision, or when they like a nominee) and alternatively acting and talking just the opposite (when they do not like a decision or nominee) for years.
Time to call them on their bad faith stunts.
Marcellus Shale, Public Dick
that isn’t trolling, that is the internet.
in fact i consider publication online of that very statute, threatening, harassing, annoying, and offensive.
but, but how can that be when Digby and Jake Tapper tell me the base hates barry
DougJ, Head of Infidelity
Hitler flooded the subways in Berlin.
Enhanced Voting Techniques
During the Battle of Berlin in 1945 the Nazis flooded the Berlin subway to slow down the advancing Soviets. A lot of German civilians who were hiding from the fighting in the subway drowned.
According to TPM, the judge’s conduct is beyond the pale, even for conservatives. I guess there’s hope.
Corbin Dallas Multipass
From one of the links:
ahahhahahah Imagine if he had gotten out a gauntlet and thrown it on the ground.
Which conservatives? Old school kind or teabaggers? Nothing is beyond the pale for teabaggers.
Enhanced Voting Techniques
So we at the point were Newt is calling for Obama’s impeachment for Obama’s lack of respect for the court?
Interesting news. Anyone know if any of our recurring trolls reside in Arizona?
@Violet: I guess the old school type. In a fair world teabaggers wouldn’t be holding elected office, instead their nonsense will be confined to fox news comments section.
Steve, that struck me too. Especially since the government lawyer gave the judge a forthright answer in court.
It’s like a teacher ordering a student to write a sentence 100 times.
Arm The Homeless
@Chris: It would be worth driving there just to flout this law in hopes that they charge me for it. Does this law apply to people in other states who post something annoying or offensive to a resident of the state? What if the server is located in Arizona, yet the offensive remarks involved two people not actually living in Arizona?
for fuck’s sake, it’s days like this when I wish Zombieland was a documentary instead of a comedy.
And if it’s old school conservatives who think it’s beyond the pale, then they’re just not paying attention to the real world. The judges and all of the GOP are held captive by their crazy teabaggers and whatever ridiculous thing they suggest is how it’s going to go. Anyone who pretends they’ll have anything like “sound judicial argument” is smoking crack.
I know that Federal pre-emption is a Commie plot, but isn’t the Communications Act of 1933 still good law?
“Le Petomane Thruway? …”
These repetitious, blogospheric, circle jerk posts are killing this blog.
Cole, you’ve handed out too many sets of keys.
Roberts is worse. He is smarter and is writing nuanced opinions that will do the job of dismantling mainstream precedent without being so obvious or understood. Some of his work, like Citizens United is unabashed conservative activism, but much his work is like the drip, drip, drip of legal Chinese water torture, small hurts that will do immense damage over time.
And he is younger, so, barring happy accident, this is going to go on for a long while.
@Violet: They might wake up one day and realize the kind of the irreversible damage they did to the country.
TPM quotes Jay Carney as saying the DOJ “will be responding to the request for a letter”. No word on what that response will be. I go back and forth between wanting a super snarky one and wanting them to go full out with a lengthy history of the Supreme Court’s rulings about what laws are and are not constitutional (ideally they would tie it back into the President’s comments of the past few days).
IANAL, but to me it definitely sounded like a teacher saying “You will stay here after the day is over and write ‘blah blah blah’ on the chalkboard 50 times.”
At this point an optimist would expect the subway to be flooded with cherry cider.
A realist? Blood, spit, and the brown stuff.
Huh…you beat me to it.
Yes, yes, and double-yes. That’s what jumped out at me too. How many times have you heard a judge lambaste some poor junior associate for making a point in ten pages that should have taken two? Judges hate redundancy, string cites, and the beating of dead horses. They don’t have the time or patience for it.
On the plus side, there’s a decent-to-good chance that if Obama wins re-election, he’ll get to replace Scalia and Kennedy, both currently 76.
Of course, the obvious drawback is that if Obama loses, Ginsburg (79) and Breyer (74) are also getting up there in age
Still, not beyond the pale for the winner of the next election to appoint 2-4 Justices, and totally determine the court’s leanings for the next ~3 decades
Who do you mean by “they”? If you mean the old school conservatives, no they won’t. They’ll claim “the Republican party left me and I have no home” a la Andrew Sullivan or David Frum and then they’ll jack off to Oakeshott until they hear some Burkean bells.
If you mean the teabagggers, they’ll never wake up. People with perpetual chips on their shoulders who simultaneously want every handout from the government available “because I’m entitled to it!” and who want to remove that same option for everyone else are not liable hold themselves accountable for much of anything.
Scalia’s going to stay even if he has to wear a drool cup and have a clerk keep him propped up.
I would submit this to the court.
As the Court stated in Marbury v. Madison:
[three page block quote]
Cite Marbury v. Mardison.
In conclusion, ….
Call it a day. Why waste your time.
It could be worse. Since Thomas never asks any questions, with him we could be headed for Weekend at Bernie’s territory. If he passed on and they propped him up and had his clerks write all his opinions, what would give it away other than the smell?
@gopher2b: I think it would actually be quite tricky to respond to this because it’s a legal document (which has to be respectful to the court whether they deserve it or not) but also a political document (where it can’t look like you’re meekly submitting to the court’s authority and agreeing that it can do whatever it feels like). I am curious to see what they end up doing.
Write a one pager and beg the court to hold you in contempt. Make it political.
@Arm The Homeless:
I suspect that this is about Sherff Joe being irritated at criticism he receives both within and without Arizona. I’m certain that one of his fine medicare/SS/military-pension receiving, Sun City-resident dominated non-soc!alist grand juries would be happy to indict some commie from back east for daring to criticize Sherff Joe.
I’m certain that you would receive a fine trial and a new rope for your hanging. They’ll probably make you say the pledge or prayer to that asshole shitstain of a deity they fawn over first before pulling the lever, though.
I’d cite Marbury v. Madison. Then go on for 3 pages with block quotes from the case. The fun part would be attach as exhibits every case since Lochner that the freakshow has screamed about, accompanied by the statements of prominent GOPers giving their take on “activist” courts. Enter it all on the record, and make it available on PACER the next day.
3 page memorandum. Several hundred pages of exhibits.
Exactly. The response is “We’re not going to do this. Hold us in contempt, asshole.”
We’ve already been constantly fighting battles with the congressional wingnuts. May as well throw the judiciary wingnuts in the ring too.
If I were the DOJ, I’d submit a three page, single-spaced brief detailing how the Marshall Court grossly overreached in Marbury and effectively destroyed the balance of powers envisioned by the Constitution. Just to fuck with the guy. But that’s why they’re in the DOJ and I’m some douchebag writing comments on a blog.
The 5th circuit has a reputation.
If the administration feels the need to appease the asshole, a one word response of YES should be sufficient. If they felt the need to “take the president to task” then the administration should feel open to responding in kind.
Baron Jrod of Keeblershire
@gopher2b: This is the correct answer. Let’s see if Judge Smith really has it in him to go to battle with the executive branch over this passive-aggressive bullshit. I’m sure the public will be all in favor of a sitting judge demanding 6th grade social studies assignments from the DoJ.
@Steve: I’ve been trying to figure out if this “brief” sounds more like a pop-quiz homework assignment, or more like one of RedState’s old “not letting you back into the comments section until you write an essay” schtick. I’m thinking RedState.
It might be fun to cite examples of obvious judicial overreach that wingers were wholly silent on. So the memorandum would basically say, “yeah, but ….” Somehow I doubt the DOJ lawyers get to have as much fun as I’d totally be having if I were assigned to the memo.
@Violet: Teabaggers? Oh God, no. The teabaggers are insane; they will burn the house and not admit they did anything wrong. We’re talking about the people who are raising money for someone who killed a 17 year old without any justification. These people are without any human decency. By they, I mean sane, but cowardly republicans who should not better but are afraid of the baggers.
In any case, I think this wingnut judge might give the White House an opportunity to make their case. I am sure their response will be widely reported. Here’s Carney answering a reporter’s question about whether the DOJ will respond: White House: Justice Department Will Respond To Court’s Order On Health Care
Eric Holder now has the shitiest job. Whenever a powerful white male in the government becomes angry b/c a black president has offended them in some way, they take it out on Holder. The GOP House is continuously attacking Holder, now the Judges, etc. He’s black & powerful enough so get me the Letter by High Noon Thursday or else!
Fuck all of the Bigots.
@Baron Jrod of Keeblershire:
The public won’t understand what’s happening until someone interprets it for them, i.e., the media. This sort of thing may make perfect sense to lawyers, but for everyone else, a judge is asking for something. Okay, why’s that a big deal? He wants the DOJ to explain something? Is that unusual? I don’t know. People defending the DOJ are citing various cases and precedents and….eyes glazing over.
You’re counting on the media to explain this whole mess and we all know how well that works.
What’s an “old school conservative” anyway? Did William F. Buckley, Barry Goldwater, Ronald Reagan, differ in any meaningful way from the teabaggers of today? Was conservatism ever anything other than a defense of racism and elitism? I’ll grant that there was a time when Republicans weren’t like that (or not all like that), but conservatives? Not seeing it.
The Old School was quieter about their hate.
Phoenician in a time of Romans
Newt Gingrich has pledged that on his first day as president he will set up a constitutional showdown by ordering the military to defy a supreme court ruling extending some legal rights to foreign terrorism suspects and captured enemy combatants in US custody.
The Republican contender told a forum of anti-abortion activists ahead of South Carolina’s primary election that as president he would ignore supreme court rulings he regards as legally flawed. He implied that would also extend to the 1973 decision, Roe vs Wade, legalising abortion.
“If the court makes a fundamentally wrong decision, the president can in fact ignore it,” said Gingrich to cheers.
The Republican contender, who has made no secret of his disdain for the judiciary, said that as president he would expect to have repeated showdowns with the supreme court. He said the court would lose because it is the least powerful and least accountable arm of government.
I mean, if you’re gonna be held in contempt ANYHOW….
Woild be really tempting to do a cite to a high school civics book followed by a history of right wing rants about activists judges as attacks on the concepts. Complete with photos of impeach earl warren era stuff
@Anya: Any body remember the year 2000 and the famous quote ” there is not a dime’s worth of difference in the 2 parties”. Nader should be the very first person elected to the national hall of shame. the next ones should be the 5 SCOTUS members who violated their oath of office .Then comes Jebbie and Harris for their successful work in disenfranchising enough voters to steal the election.
The complete mockery we are seeing of democracy is a direct result of the stolen elelction of 2000. The turning of our justice system in to ideological hackery is the result of Dubwa’s turning the justice system into a political branch of the government.
@elmo: Of course it’s punishment. The statements the judge wants explained were not made by the litigants, but by the President in a campaign speech. The judge wants to discourage the President from exercising his 1st Amendment rights to comment on current issues and to conduct a campaign, and his Art.II rights to act as head of a coordinate branch of government.
That is an egregious abuse of judicial power, and this judge needs to be investigated for same by whatever bar association(s) have jurisdiction. ETA: And also by the relevant court of appeals.
@Dave: That’s the spirit!
Someone asked some question like this of Eric Holder today and he gave a polite version of “what the hell is wrong with you” as a response (that was actually more like “the President will respect the Supreme Court decision” in a certain tone of voice) and presto, chopped down into a huge top page FoxNews.com headline
So if you were wondering if this is a coordinated effort: yes, it is
@Legalize: OOOOH, from your mouth to Eric Holder’s ears!
I think the DOJ needs to respond in a thoughtful way, pointing out that the 1st amendment extends to the President of the United States. Also. Too.
So, this guy is basically one of Bush the lesser’s asshole buddies. And a Federalist society ideological hack to boot. No wonder he’s thin-skinned.
@Steve: well, yeah, and also, the rules for appellate (and any other rules for submission of briefs I have seen in the past 18 years of litigation in 14 different jurisdictions) briefs state that they must be double spaced. This judge is a publicity seeking dick who is way off base. The Orly Taitz of judges.
Scalia doesn’t need to be propped up. That huge stick up his ass will keep him vertical for ever.
@Steve: Me neither, and I was admitted 20 years ago March. For what it’s worth, I specialize in appellate litigation, and have been involved in 2 Supreme Court cases (one as a student, one as lead counsel). And y’know what? I don’t trust these activist judges.
Oh, and one point–my preferred response would be for Holder to submit a three page affidavit accompanied by a chunky brief appended to a notice of motion to recuse all three members of the panel, based on the presiding judge’s display of partiality predicated on matters outside the record in the case before the court, and the resulting taint to the other two judges who acquiesced in it. You want to take it to the hoop? Probably the best way to do it, especially as it’s within the rules.
Because doing so is one of the ways you prove you accept the basic consensus of power in the country. And of course, you should do that, because power is generally distributed correctly.
@Johannes: I like it.
Telling Smith that his order is inappropriate and that he should shove it might be a good place to start the pushback against the Courts.