WASHINGTON -- The wrangling between the judicial and executive branches over President Barack Obama's health care law grew even more contentious on Tuesday, as an appellate court judge demanded that an Obama administration lawyer clarify whether the president believed in the concept of judicial review.
The incident, reported by CBS, was a remarkable instance of politics entering the courtroom. While hearing a challenge to the Affordable Care Act, Fifth Circuit Appeals Court Judge Jerry Smith stopped DOJ attorney Dana Lydia Kaersvang as soon as she started talking. Smith asked whether it was the department's belief that the Supreme Court could declare a law unconstitutional. Kaersvang answered yes, though her reply left Smith unsatisfied, as he reportedly responded that it wasn't evident to him that the president respected judicial independence.
It's quite rare for a judge to openly display his or her political leanings in public, let alone in a courtroom. Smith's outburst was quickly noticed by administration officials, though the Justice Department had not released a public statement about the incident by late afternoon on Tuesday. The comment also underscores just how sensitive hearings over the president's health care law have become since last week's Supreme Court oral arguments.
Smith was responding to remarks the president made during a Monday press conference, in which he said he was confident that the Supreme Court would uphold the Affordable Care Act and argued that it would be a bout of judicial activism not to. The president addressed the topic again on Tuesday. Speaking at an Associated Press luncheon, he reiterated that it would be unprecedented for the court to rule that Congress didn't have the authority to compel individuals to buy health insurance coverage under the commerce clause. But the president also went out of his way to stress that he respected the court's authority to call constitutional balls and strikes.
"[T]he point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress," Obama said. "And so the burden is on those who would overturn a law like this."
Obama's comments have prompted a wave of conservative complaints that he is engaging in judicial intimidation. Senate Minority Leader Mitch McConnell (R-Ky.) called his tactics "distasteful politics" that demonstrated "a fundamental lack of respect for our system of checks and balances."
Rep. Lamar Smith (R-Texas), meanwhile, argued that the president "should not be in any shape [or] form threatening the Supreme Court and making statements that are inappropriate or deemed trying to intimidate the Supreme Court."
It was a rare moment in which Republicans found themselves worrying that the judicial branch was being bullied. The list of conservatives who have browbeaten the court is, after all, is fairly extensive.
Former House Speaker Newt Gingrich, who remains a candidate for the GOP presidential nomination, recently declared that as president he would have the Justice Department send a U.S. marshal to force judges to comply with subpoenas. Gingrich has routinely called for the abolishment of the Ninth Circuit Court of Appeals as well.
Former House Majority Leader Tom DeLay (R-Texas) threatened the courts for failing to respond properly to the Terry Schiavo case, going so far as to call for a panel to review its handling.
"[T]he time will come for the men responsible for this to answer for their behavior," he said at the time, adding that he wanted to "look at an arrogant, out-of-control, unaccountable judiciary that thumbed their nose at Congress and the president."
Sen. John Cornyn (R-Texas), meanwhile, once attributed a series of instances of courthouse violence to public anger with judges.
"I don't know if there is a cause-and-effect connection, but we have seen some recent episodes of courthouse violence in this country," he said. "And I wonder whether there may be some connection between the perception in some quarters, on some occasions, where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in, engage in violence. Certainly without any justification, but a concern that I have."