Constitutional Law

Controversy Now Centers on 5th Circuit Judge Who Sought AG Input re Obama 'Judicial Activism' Remark


Judge Jerry E. Smith of the New Orleans-based 5th U.S. Circuit Court of Appeals is a conservative voice on what may be the nation’s most conservative federal appellate court.

But the Yale Law School graduate isn’t political, and he brings an independent mind to his work on the bench, those who know him tell the Associated Press, in response to a growing national controversy over the judge’s demand that the executive branch explain itself concerning “judicial activism” remarks made by President Barack Obama about a pending U.S. Supreme Court case.

“Judge Smith is not about grandstanding. If he asks a question from the bench, it’s an honest question,” said law professor Stephen Henderson of the University of Oklahoma, who served as a clerk for Smith in 1999 and 2000. “Judge Smith has no control over whether others turn a court order into a political football. If he asks a question, it’s because he wants to know the answer.”

Taking the opposite position Friday in a CNN column was professor Laurence H. Tribe of Harvard Law School.

Smith’s demand earlier this week that the U.S. Department of Justice submit a letter within two days explaining Attorney General Eric Holder’s position on the president’s remarks was “a shocking misuse of power,” Tribe contended. He called Obama’s comments an “entirely correct observation” that precedent and historical practice call for judicial deference toward federal legislation such as the heath-care reform at issue in the Supreme Court case.

Smith’s “gratuitous order is little more than a thinly concealed insult to the president, the Justice Department and the administration,” Tribe continued. ” It constitutes a shocking departure from norms of judicial behavior. While such partisan bickering might be expected from the minority leader of the Senate or from commentators like Rush Limbaugh, who drew upon Obama’s remarks in yet another entry in their relentless attacks on the president, it is hardly to be expected of a federal judge.”

Earlier coverage:

ABAJournal.com: “Obama Says Overturning Health Care Law Would Be ‘Extraordinary’ Judicial Activism”

ABAJournal.com: “Fed’l Appeals Judge Tells DOJ to Write Memo by Thursday Explaining Obama ‘Judicial Activism’ Claim”

ABAJournal.com: “Holder Backs Obama’s ‘Judicial Activism’ Remark, Says DOJ Will Give 5th Circuit Judge Required Memo”

ABAJournal.com: “AG Holder Letter to 5th Circuit Affirms Judicial Power to Strike Unconstitutional Laws, Backs Obama “

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