Jeffrey Toobin: The Fifth Circuit threw a “hissyfit” in asking the DOJ for a letter on judicial review

posted at 8:32 pm on April 4, 2012 by Allahpundit

Not an altogether partisan reaction — although, Toobin being Toobin, it’s pretty darned partisan. Orin Kerr, a regular contributor to the right-leaning Volokh Conspiracy, said this of the Fifth Circuit’s now-famous order yesterday:

Having heard the audio, the tone of the questions was quite different from what I was expecting based on the story. It came off to me as earnest and genuine, not just an effort to score a cheap political point. With that said, the order still strikes me as highly inappropriate: The DOJ lawyer was quite clear as to DOJ’s position, and lower court judges deciding cases based on briefing and argument should not be going outside the record to come up with assignments to litigants based on press releases by politicians in such politically charged matters. It just makes the judges look like political actors themselves, which doesn’t help anyone.

Lefty Ruth Marcus, who called out The One on Monday for demagoging unelected judges, agrees with Kerr:

It was weird enough for an appeals court to go out of its way to take judicial notice of comments that were not in the record before it. The government lawyer, Dana Lydia Kaersvang, quickly assured the court that Marbury v. Madison, the 1803 case establishing the principle of judicial review, “is the law.”

Which should have been the end of the strange interlude, but it was not enough for Smith…

It is, as Chief Justice John Marshall wrote in Marbury, emphatically the province of the judiciary to say what the law is. It is emphatically not the province of the judiciary to interject itself into the political debate, which is what Smith’s outrageous, unprovoked order inevitably does. I believe fervently in the importance of life tenure, but judicial shenanigans like this are enough to make you wonder.

Yeah, I can understand the court tossing a question about judicial review at the DOJ’s lawyer during oral arguments as a pointed reminder that Obama’s comments didn’t go unnoticed, but I don’t understand asking them for a letter when she affirmed for them on the spot that of course the Department believes Marbury v. Madison is good law. It really is, as my appellate-lawyer friend said yesterday, more like a “homework assignment” than a request for a clarification of a legal point in dispute. So let me reframe my question for litigators from that last post this way, since this is, essentially, a very mild sanction for O’s sly attempt to impugn the Supreme Court’s integrity: How often do appellate courts request written submissions from a party as a sort of reprimand, in the interest of proving a point or sending a message, rather than in the interest of settling a contended point of law?


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Yeah, I can understand the court tossing a question about judicial review at the DOJ’s lawyer during oral arguments as a pointed reminder that Obama’s comments didn’t go unnoticed, but I don’t understand asking them for a letter when she affirmed for them on the spot that of course the Department believes Marbury v. Madison is good law

Get it in writing, baby.

Good Lt on April 4, 2012 at 8:33 PM

Glad they did.

Dingbat63 on April 4, 2012 at 8:35 PM

The Fifth Circuit judge was probably a bit out of line but Jeffrey Toobin is still a tool.

Bitter Clinger on April 4, 2012 at 8:36 PM

It’s important to point out that they gave them this “assignment” over another case dealing with ObamaCare. This is not some random case here.

ninjapirate on April 4, 2012 at 8:36 PM

when she affirmed for them on the spot that of course the Department believes Marbury v. Madison is good law

She did. But she went on, talking about severability and attempting to explain why Obamacare should not be struck down. Had she simply replied, “Yes, your honor,” perhaps the 3-judge panel would not have given her the writing assignment.

Dee2008 on April 4, 2012 at 8:38 PM

Am I the only one who noticed the lack of media coverage when Jeffrey Tobin knocked up Jeff Greenfield’s daughter while married to another woiman about two years back? Compare that to the coverage the media gave Bristol Palin.

bw222 on April 4, 2012 at 8:38 PM

Can’t answer your question about precedent regarding the letter request — not a lawyer — but this 5th Circuit judge is doing this country a great, great service: He wants it in writing from the Obama Administration so that when Barack demagogues and tries to delegitimize the court, there will be documentation to show what a lying partisan hack he is. It is actually a brilliant chess move.

Rational Thought on April 4, 2012 at 8:38 PM

Yeah, I can understand the court tossing a question about judicial review at the DOJ’s lawyer during oral arguments as a pointed reminder that Obama’s comments didn’t go unnoticed, but I don’t understand asking them for a letter when she affirmed for them on the spot that of course the Department believes Marbury v. Madison is good law.

I’m reminded of an old addage regarding the “poking of a Tiger with a stick”.

The Obama administration does a lot of rhetorical “poking”.

It was only a matter of time.

Good on the judge for standing up to the big-mouthed, jug-eared, school-yard bully.

Tim_CA on April 4, 2012 at 8:39 PM

I don’t give a tinker’s da*n how “offended” (geez I hate that word any more) the left is about with the 5th Circuit requested. I just see it as playing by Odumbo’s rules for a change. And it freaks them out. A president demeaning and calling out the SCOTUS is way more out of line, than a court asking for clarification.

waterytart on April 4, 2012 at 8:40 PM

This was an example of a co-equal branch calling BO on his BS. It’s about time.

phxconservative on April 4, 2012 at 8:40 PM

All hail Caesar Obama.

VorDaj on April 4, 2012 at 8:40 PM

Doesn’t this “homework assignment” establish in writing the official DOJ position on judicial review before the ruling comes down?

beatcanvas on April 4, 2012 at 8:41 PM

Obumble is the CinC of the most powerful military the world has ever known. The Circuit and Supreme Court Justices are just old men in long black dresses. When Obumble challenges the separation of powers doctrine that our system is based on, it’s understandable that a judge would want some clarification from one of his minions. And, after all, the Fifth Circuit was hearing a case on Obumblecare.

There wouldn’t even have been a discussion about this if Obumble would’ve kept his stupid mouth shut about stuff he clearly doesn’t understand.

The Reasonable Man on April 4, 2012 at 8:42 PM

“what” not “with”, argh, long day.

waterytart on April 4, 2012 at 8:42 PM

It will be nice to have Eric Holder actually put on paper (three pages, single spaced) his thoughts on judicial review. On paper. Then if the ruling doesn’t go their way it will be harder for them to make the arguments they have been trying to make.

rogaineguy on April 4, 2012 at 8:43 PM

With Obama and Holder you have to be over the line. They blow off everything.

John the Libertarian on April 4, 2012 at 8:43 PM

Obama’s screed at the justices at last year’s SOTU wasn’t the hissy fit to end all? Did Toobin weigh in on that?

Wethal on April 4, 2012 at 8:43 PM

Toobin’s wrong. Obama wasn’t speaking as an ordinary American citizen, but as the 2nd Branch. And I wouldn’t call this a “hissyfit” so much as it is a Circuit Court reminding the Executive not to tell judges how to do their job.

That said, I’m not all that certain that what the Fifth Circuit demanded was appropriate, especially since there was no dispute as to its power of judicial review.

NorthernCross on April 4, 2012 at 8:43 PM

To the extent it works, Toobin’s brain chases its tail.

It’s OBAMA who threw the hissy-fit.

jaime on April 4, 2012 at 8:44 PM

Obama needs to clarify whether he thinks he is a King or an Emperor. It will be useful in knowing how to furnish his padded cell.

VorDaj on April 4, 2012 at 8:44 PM

Someone had to…thank you, Judge.
Brietbart lives and is with us.

I love when a Lefty’s head explodes…I guess we’re over the target.

Typicalwhitewoman on April 4, 2012 at 8:44 PM

It sure changed the tone of the Emperor and his minions. Even Holder did not have as big a smirk on his face as usual.

d1carter on April 4, 2012 at 8:44 PM

Rational Thought on April 4, 2012 at 8:38 PM

Imagine the campaign ads that could come from this!

RedRedRice on April 4, 2012 at 8:46 PM

Strike down Obamacare Judicial activism

What about

Citizen United…Good Policy or Judicial activism
Prop 8…Good Policy or Judicial activism
DOMA Good policy…Good Policy or Judicial activism

tjexcite on April 4, 2012 at 8:47 PM

What these folks are saying is Obama can say anything he damm well pleases and no one should criticize him. Many people were pleased to see the court’s reaction to his petulance, and arrogance. Obama showed his a$$ and got spanked.

Ken James on April 4, 2012 at 8:48 PM

three pages, single spaced

This is especially entertaining.

Ask someone who teaches composition (either high school or college), and they’ll tell you about students will try to submit a three-page paper with quadruple spacing, 14-point font and 2″ margins for an assignment of a three page essay.

The judge was afraid they’d blow it off with big margins, headings, double-spacing, vague introductions, etc.?

Wethal on April 4, 2012 at 8:48 PM

It sure changed the tone of the Emperor and his minions. Even Holder did not have as big a smirk on his face as usual.

d1carter on April 4, 2012 at 8:44 PM

I noticed that, too. Quite a few lefties the last couple of days have had this look on their faces that says, “Sh!t. Barack’s gone Captain Queeg on our asses.”

Rational Thought on April 4, 2012 at 8:48 PM

When the POTUS makes an official statement denying judicial review, a formal written clarification is warranted.

talkingpoints on April 4, 2012 at 8:49 PM

I think it was a legitimate question to ask. Something tells me Obama got a little “help” through law school.

The Count on April 4, 2012 at 8:49 PM

The Fifth Circuit better be careful, or the Ninth Circuit will hit them with their purses… and immediately rule it protected fabulosity of speech.

M240H on April 4, 2012 at 8:51 PM

Am I the only one who noticed the lack of media coverage when Jeffrey Tobin knocked up Jeff Greenfield’s daughter while married to another woiman about two years back? Compare that to the coverage the media gave Bristol Palin.

bw222 on April 4, 2012 at 8:38 PM

No! I started looking for other ways to get news after that,not trusting the major media as verified by the stories they do cover, their intensity and outright silence when it is ‘their people’. Look at Newt for example! Been a little quiet for a dozen years now…but you would think he’s still running around with his tool in his hand the way the media displays him.

KOOLAID2 on April 4, 2012 at 8:52 PM

The Fifth was just letting Obama know he isn’t the only one who can send messages.

Fifth Circuit to Obama: Cut the crap.

novaculus on April 4, 2012 at 8:53 PM

three pages, single spaced

This is especially entertaining.

Ask someone who teaches composition (either high school or college), and they’ll tell you about students will try to submit a three-page paper with quadruple spacing, 14-point font and 2″ margins for an assignment of a three page essay.

The judge was afraid they’d blow it off with big margins, headings, double-spacing, vague introductions, etc.?

Wethal on April 4, 2012 at 8:48 PM

Maybe Carney will write it. Carney could write a book and not say anything.

slickwillie2001 on April 4, 2012 at 8:53 PM

Ed Whelan of “Bench Memos” at NRO has little regard for Toobin’s evaluations on and misrepresentations of the SC hearings on O-care. The commenters afterward share Whelan’s disdain of the partisan Toobin.

http://www.nationalreview.com/corner/295282/jeffrey-toobin-s-scandalously-cruel-distortion-ed-whelan

I say, meh, who cares what he has to say about what the Fifth Circuit judge “assigned”? Maybe he simply wanted the DOJ to commit to a clear understanding of the separation of powers since Obama and Holder tend to blur or disregard the issue for political purposes.

onlineanalyst on April 4, 2012 at 8:53 PM

I don’t think so. When parties say one thing in court and then go out and talk shite to reporters outside court, I have seen judges make them reappear and go on record. That’s what happened here. It’s not punitive but to stop them from misleading the public.

Blake on April 4, 2012 at 8:55 PM

Hey Jeff, how is your father in law Jeff Greenfield doing? You know, the father of the girl you knocked up while married to another woman.

reddevil on April 4, 2012 at 8:57 PM

Why are we even giving this tool any attention?

WisCon on April 4, 2012 at 8:57 PM

With Obama and Holder you have to be over the line. They blow off everything.

John the Libertarian on April 4, 2012 at 8:43 PM

…if JugEars wants to give his comments and play in front of the camera…I think the Judge was not out of line showing Ears and Hold-me, he had something underneath those robes!

KOOLAID2 on April 4, 2012 at 8:58 PM

Marbury v Madison is a legal precendent, unless I’m missing Congress passing and a President signing the Marbury v Madison Act of 1803.

Spliff Menendez on April 4, 2012 at 8:59 PM

This Regime is creating breakdowns or tradition, decorum and civility all over the place.

This is why I laugh when I hear people say things like “there can’t be a leak from the SCOTUS – there’s never been leaks from the SCOTUS…”

Right. It’s an Obama world now.

forest on April 4, 2012 at 8:59 PM

There were many conservative federal judges that did not appreciate the dressing down Dear Leader gave the SCOTUS at the SOTU…they don’t forget.

d1carter on April 4, 2012 at 8:59 PM

Obama has been pushing his socialist agenda so long and so hard, and you know what?

He needed a good shove back to put him square on his azz.

Roy Rogers on April 4, 2012 at 8:59 PM

Must be something else to sit in high towers even for conservative lawyers and tut-tut the 5th for their requested howork assignment. There they go again, playing nice while getting their eyes gouged.

Oboobi is playing hardball and needs to be smacked down but hard. Asking for three pages of single spaced write up is pure genius. Either it will be of substance which paint Oboobi into a corner or it’ll be fluff which exposes Oboobi yet again. Either way, Oboobi won’t get away with a simple paragraph restating that Marbury is good law.

Luckily, rubes like me aren’t buying the elite ‘ meme that the judge went beyond his duty.

AH_C on April 4, 2012 at 9:00 PM

How often do appellate courts request written submissions from a party as a sort of reprimand, in the interest of proving a point or sending a message, rather than in the interest of settling a contended point of law?

How often do Presidents insult Supreme Court Justices, lie about cases, and try to undermine the Constitution?

You want to know what Obama got a homework assignment? Because he failed his midterm and needs the extra help if he ever wants to get a passing grade, let alone a B+

Ukiah on April 4, 2012 at 9:00 PM

Obama needs to be taken down a few notches, and the 5th Circuit took an opportunity to do that.
It is too bad that Republican senators don’t have brass like that of the 5th Circuit.

GaltBlvnAtty on April 4, 2012 at 9:00 PM

Wethal on April 4, 2012 at 8:48 PM

Good catch (not that I’m surprised, given your intellect.)
I also see some elements of homework as punishment, as well as an implicit calling out of the lawyer,the DOJ, and the Administration; act like petulant teenagers, get treated that way.

massrighty on April 4, 2012 at 9:01 PM

I’m on Team Fifth Circuit. We’re living in interesting times.

22044 on April 4, 2012 at 9:01 PM

AP is now the official Obama sympathizer? Because that’s all he’s been doing lately.

Spliff Menendez on April 4, 2012 at 9:01 PM

Hissy fit, complete with Freudian slip, on Toobins part. Partisan hack. Nothing more. I was surprised that Blitz pushed back as much as he did.

Bmore on April 4, 2012 at 9:02 PM

Keep pulling on their capes..er robes. This is the same guy that could not see any Constitutional challenge to the tax bill known as 0bama HellCare?

The left is the definition of Dunning Kruger.

jukin3 on April 4, 2012 at 9:02 PM

I think it was a legitimate question to ask. Something tells me Obama got a little “help” through law school.

The Count on April 4, 2012 at 8:49 PM

Affirmative.
(Double meaning meant.)

massrighty on April 4, 2012 at 9:03 PM

Isn’t the big difference in all of this the timing? Obviously this president isn’t shy about telling SCOTUS when he thinks they have gotten it wrong and I am sure there have been Republicans who have also complained. To me this is different because they haven’t ruled yet. That puts the remarks in a different light, like using the bully pulpit to get extra time to argue his side through intimidation. I am sure I’m not the first to make the point. As to the judges, I don’t have a problem with him seeking clarification but the homework assignment was too much.

Cindy Munford on April 4, 2012 at 9:04 PM

This Regime is creating breakdowns or tradition, decorum and civility all over the place.

This is why I laugh when I hear people say things like “there can’t be a leak from the SCOTUS – there’s never been leaks from the SCOTUS…”

Right. It’s an Obama world now.

forest on April 4, 2012 at 8:59 PM

Yup. Obama wants to burn it all down. Evil. Truly evil.

This piece in the Washington Times sums it up well:

And there, in a nutshell, is Mr. Obama’s plan to divide and conquer. Rise up, America, against your nation’s Congress, your nation’s highest court — and even America’s Constitution.

His desperation is now palpable, and it’s only April. This is going to get ugly, people.

Rational Thought on April 4, 2012 at 9:06 PM

massrighty on April 4, 2012 at 9:01 PM

:) Thanks.

When I first heard of this, the picture of Bart Simpson staying after school to write “I will not…..” on a blackboard came to mind.

Surprised someone (Slublog?) hasn’t done up a cartoon of Obama by the blackboard.

Wethal on April 4, 2012 at 9:06 PM

press releases by politicians in such politically charged matters

Obama, Campaigning Politician in Chief.

peski on April 4, 2012 at 9:07 PM

I can’t decide if his comments are part of the War On Women(TM) or homophobic.

Either way I think ……..maybe ……yep …….there it is.

I’m officially offended.

The Ugly American on April 4, 2012 at 9:08 PM

His desperation is now palpable, and it’s only April. This is going to get ugly, people.

Rational Thought on April 4, 2012 at 9:06 PM

This part is chilling…

d1carter on April 4, 2012 at 9:09 PM

How often do appellate courts request written submissions from a party as a sort of reprimand, in the interest of proving a point or sending a message, rather than in the interest of settling a contended point of law?

I reject the premise of the question. You make the assumption it’s just a “homework” assignment or some punitive action based on the President’s comments. I think the court wants to know in writing if the Chief Executive was giving a political speech or if that’s really the position of the defense in the case. If this was the CEO of any major company, no one would blink an eye at the judge’s order.

gaius on April 4, 2012 at 9:09 PM

This part is chilling…

d1carter on April 4, 2012 at 9:09 PM

Chilling, fun and entertaining. Good times!

Bmore on April 4, 2012 at 9:12 PM

The court is hearing arguments that zer0bamacare is constitutional, and then Barack says the courts really can’t over-turn the law without some unprecedented precedent. Seems reasonable to me that the court would want clarification. Otherwise, why waste the court’s time with presenting a defense of zer0bamacare?

SouthernGent on April 4, 2012 at 9:13 PM

This whole point is moot until we find out if Obama’s pet DOJ actually replies to Justice Smith with their three page paper. As already mentioned, Holder is typically defensive on this topic but not quite as cocky. We’ll know tomorrow.

Obama has a history of telling federal courts to eff off. After this ruling, he blew off Justice Feldman:

Judge Martin Feldman held the Obama Administration in contempt of court for refusing to obey an order lifting the Gulf drilling moratorium.

….and what came of that?

timmytee on April 4, 2012 at 9:16 PM

I say good on the 5th circuit! I am tired of our side playing by the polite guy rules and this regime plays by Chicago rules. Obama is the head of the executive branch, not the king! He has tried to delegitimize Congress and now the SCOTUS. What is he trying to do here? Hmmmm?

AnnaS on April 4, 2012 at 9:18 PM

toobin is tool

go away

cmsinaz on April 4, 2012 at 9:19 PM

train wreck, thy name is toobin

cmsinaz on April 4, 2012 at 9:20 PM

The 5th Circuit is no more out of line than Obama’s threats aimed at the court.

If he didn’t want to invite crap like this he can keep his TRAP shut.

wildcat72 on April 4, 2012 at 9:21 PM

What happened to that fawning admiration that liberals usually have for those that ‘speak truth to power’?

slickwillie2001 on April 4, 2012 at 9:21 PM

It was only a matter of time.

Good on the judge for standing up to the big-mouthed, jug-eared, school-yard bully.

Tim_CA on April 4, 2012 at 8:39 PM

The best part is there is no “leader” of the judicial branch who runs the joint. Any federal judge can order the Executive branch to complete some homework, not a special few.

When the Executive branch gets tired of doing its homework, maybe it’ll get smarter and start executing laws instead of making them up.

BobMbx on April 4, 2012 at 9:22 PM

We can’t wait to take any court out that does not agree with us.

The Presidebt that is unilaterally refusing to defend DOMA.

jukin3 on April 4, 2012 at 9:24 PM

This piece in the Washington Times sums it up well:

(snip) His desperation is now palpable, and it’s only April. This is going to get ugly, people.

Rational Thought on April 4, 2012 at 9:06 PM

The left is not accustomed to pushback, they’ve been taunting and walking all over us for so long. But there are signs of the giant awakening, Justice Smith being one of them.

Obama’s fragile ego is under assault, as his palpable desperation indicates. If we keep up the pressure, he will crumble. Problem is that he’s only the stooge, the mouthpiece. His handlers are much stronger and they will get more and more vicious as opposition picks up.

Sean Hannity added his bit:

http://dailycaller.com/2012/04/04/hannity-hints-he-has-inside-information-on-media-matters-from-wh-source/

Yuppers, it’s definitely going to get ugly.

timmytee on April 4, 2012 at 9:28 PM

So let me reframe my question for litigators from that last post this way, since this is, essentially, a very mild sanction for O’s sly attempt to impugn the Supreme Court’s integrity: How often do appellate courts request written submissions from a party as a sort of reprimand, in the interest of proving a point or sending a message, rather than in the interest of settling a contended point of law?

Rarely. On the other hand, most attorneys’ superiors usually stay mum about a legal matter until it has been fully resolved in the courts. They generally aren’t stupid enough to raise tangential issues while a matter is pending and muddy the waters. Although Judge Smith’s order may seem a bit rash, what’s unprecedented is hearing Kaersvang’s “boss” question a court’s authority to do its job. If mine did the same, I’m sure I’d be asked to complete a homework assignment as well.

Erich66 on April 4, 2012 at 9:34 PM

marbury v. madison, the begining of judicial over reach. yeah, toobin is a tool. yeah obama is desperate. and yeah, he is going to lose. and yes its going to get ugly. and yes, he has disdain for our constitution. will ignore it, circumvent it, blatentlt violate it, and if he could, destroy it, with all those negative rights and all. but, marbury v madison was the beginning of the end.

t8stlikchkn on April 4, 2012 at 9:40 PM

I believe this has something to do with the ceremony where –

At the beginning of each session, the marshal of the Court (Court Crier) announces: “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!”

Essentially, plaintiffs and respondents have a dispute, and are placing it into the judge’s hands to resolve. If one party says, “I don’t care what the judge says, I’m going to do whatever I want”, without being compelled to be there, then there is no reason for the judge to go farther.

In other words, if the DOJ doesn’t want to involve the courts in what they do, they’ll have no place in the courtroom.

cthulhu on April 4, 2012 at 9:42 PM

Hack Toobin reminds me of “My Cousin Vinny” where the respectable judge (Fred Gwynne) asks Vinny “Are you on drugs ?”

viking01 on April 4, 2012 at 9:57 PM

Toobin will make a rational response as soon as he gets his head out of Obama’s ass.

While it may have been ‘inappropriate’ for the court. :)
At least ONE judge isn’t taking any crap off The Chosen One.

GarandFan on April 4, 2012 at 10:00 PM

We’d be screaming if a judge did this to a conservative President, right or wrong.

They should stay out of commenting on the public forum, since it was not part of the facts of the case.

But still, I liked it.

goflyers on April 4, 2012 at 10:07 PM

I think it was a legitimate question to ask. Something tells me Obama got a little “help” through law school.

The Count on April 4, 2012 at 8:49 PM

You actually think he went to law school? Where are the records/transcripts/college photos, etc…..????

chai on April 4, 2012 at 10:28 PM

I agree with your instinct on this one, allah. I’ve seen plenty of judges grandstand, and this looks like grandstanding. Even if it’s not politically motivated (it feels like it is), it’s undignified. We’ve got plenty of howling and drooling in the government without the judiciary joining in.

Pavel on April 4, 2012 at 10:30 PM

They responded to Obama’s arrogance and ignorance….like yours Toobin.

lilium479 on April 4, 2012 at 10:36 PM

Can someone now explain to Bohener and McConnell (Dumb and Dumber) how its done? Did I miss their statements on the issue somehow or did they do their usual disappearing act on this?

riddick on April 4, 2012 at 10:48 PM

So let me reframe my question for litigators from that last post this way, since this is, essentially, a very mild sanction for O’s sly attempt to impugn the Supreme Court’s integrity: How often do appellate courts request written submissions from a party as a sort of reprimand, in the interest of proving a point or sending a message, rather than in the interest of settling a contended point of law?

Never. This was truly a hissy fit. The Court is imposing a humiliating punishment on a low level attorney appearing on a matter having nothing to do with the case Obama was speaking about, which is not even before the 5th Circuit in any event. I haven’t seen or heard of anything remotely like this in 22 years of practice.

cam2 on April 4, 2012 at 11:16 PM

I’m a trial attorney, and while I don’t often see judges upbraid an attorney appearing before them like that, I have seen worse. Remember this was a DOJ attorney appearing before the judge. An attorney is an officer of the court, and the judge is the ultimate power in the courtroom. If a judge is displeased with an attorney or the attorney’s client, he can take it out on the attorney. A smart attorney in that situation just sucks it up respectfully and does whatever the judge asks without questions or objections.

Before I went to law school I was a legal assistant, and I saw a federal judge tell an attorney, quite seriously, to go home, look up the word “concise” in the dictionary, and write out the definition 100 times. The attorney had insisted repeatedly he would be “concise” and then droned on incessantly despite the judge’s milder admonitions. The judge finally got fed up with him.

toby11 on April 4, 2012 at 11:17 PM

Did

POSTED AT 8:32 PM ON APRIL 4, 2012 BY ALLAHPUNDIT

or anyone besides one commenter listen or read the transcript?

for a simple question by the judge the DOJ attorney obfuscated with language and almost a direct quotes from Obama. the judge then asked a second and third time with the same result. so the judge simply asked the Obama DOJ provide a legal basis for policy statements made by Obama clearly intended to overrule Federal courts.

mathewsjw on April 4, 2012 at 11:30 PM

I wonder if Jake Tapper will have the guts to put Obama in his place and question him about the “strong majorities” that passed Obamacare?
And if he does, I can’t wait to see the daggers that his fellow “journalists” will shoot him.

ardenenoch on April 4, 2012 at 11:37 PM

They did a big service for the country – it is a great reality check.

This week Obama jumped the shark.

Schadenfreude on April 5, 2012 at 12:19 AM

Toobin has deteriorated markedly over the last 10 years as a principled legal analyst. In fact he has become something of an ill-informed political hack, often giving views with a mediocre understanding of the law, facts or context. He has become repetitious, presumptuous, and narcissistic. I am somewhat shocked as to how poorly he now performs.

pat on April 5, 2012 at 12:29 AM

It doesn’t help the always difficult struggle for an independent judiciary in other countries if an American president is issuing Venezuela-like statements on U.S. courts.

Another possible explanation occurs. It’s in one of the grandest moments in “The Wizard of Oz,” when the Wizard, fumbling at the controls inside his throne room, shouts to Dorothy and the others: “Pay no attention to that man behind the curtain.” Barack Obama, a wizard of another kind, has been trying with fulminations and denunciations to keep anyone from attempting what a law professor might call discovery of what the president actually has done in the past three years.

Schadenfreude on April 5, 2012 at 12:31 AM

There were many conservative federal judges that did not appreciate the dressing down Dear Leader gave the SCOTUS at the SOTU…they don’t forget.

d1carter on April 4, 2012 at 8:59 PM

Ok. I’m expecting that this 3-page “homework assignment” for the DOJ will just come back a non-responsive hodgepodge of gibberish and evasion that will just piss these judges off even more.

Then what? Will they subpoena and depose Holder? Oblamer himself? This is totally sweet, and it could fester into a raging PR boil on Pres Crankypants’ upturned chin.

What I really love is that this is a total lose-lose proposition for President Downgrade, no matter how he responds.

Harbingeing on April 5, 2012 at 4:35 AM

When the POTUS, arguably the most powerful man in the world, publicly makes statements designed to mislead those among us who have little understanding of how our government is supposed to work into thinking that a ruling against Obarmycare would be an overreach from the Judiciary, a demand for clarity is definitely in order.

Obarmy is abusing his bully pulpit by trying to deceive the gullible among us for purely political motives. He wants to have the ground already plowed in case he feels the need to inflame his constituency if/when his signature legislation is undone.

It is despicable.

hillbillyjim on April 5, 2012 at 5:12 AM

This is the second time SCFOAMF has dissed the court in public and yet we are b8cthing about a conservative justice wanting in writing what the DOJ policy – per the President – is?

Is this Hotair or Huffington?

ChuckTX on April 5, 2012 at 8:21 AM

Huzzah to the judge who REQUIRED the homework assignment… act like a child, get treated like one…

Khun Joe on April 5, 2012 at 8:27 AM

Jeffery Toobin?

Didn’t he get Jeff Greenfield’s daughter pregnant?

Toobin, who glumly sat several rows away from Casey Greenfield before the hearing, is said to have privately admitted to fathering the child, believed to have been born last summer, sources said.

A friend of Greenfield’s said the outspoken Toobin has resisted putting his name on the infant’s birth certificate and hasn’t given his former lover the child support she’s requested.

As if anything this douche says is in anyway significant.

Dr Evil on April 5, 2012 at 8:42 AM

How often do appellate courts request written submissions from a party as a sort of reprimand, in the interest of proving a point or sending a message, rather than in the interest of settling a contended point of law?

Who cares? How often do we have a president who actually threatens the Supreme Court in public and questions the Court’s right to overturn an unconstitutional law?

cicerone on April 5, 2012 at 8:48 AM

After getting his most cherished beliefs trashed by the cutting questions of the Supremes, Toobin struggles for relevance.

itsspideyman on April 5, 2012 at 10:21 AM

I don’t understand asking them for a letter when she affirmed for them on the spot that of course the Department believes Marbury v. Madison is good law.

DOMA is “good law” too – AP. Is it being enforced?

labrat on April 5, 2012 at 10:53 AM

When Judges overseeing cases hear the boss of their attorneys who are presenting cases to them make wild and crazy threats against the constitutional judicial system its self, there should be great alarm and clarification that the attorneys the President has set forth to represent the Executive Branch understand how the Constitution works.

The Judge’s order is only to affirm that these Attorneys do understand the law because great confusion created by their superior. Especially when the President can hire and fire his attorneys with impunity.

Egfrow on April 5, 2012 at 11:12 AM

The Judge’s order is only to affirm that these Attorneys do understand the law because great confusion created by their superior. Especially when the President can hire and fire his attorneys with impunity.

Egfrow on April 5, 2012 at 11:12 AM

The President can usually hire and fire his attorneys with legal impunity, but if he is a Republican, the Media gets testy about it.

AesopFan on April 5, 2012 at 4:21 PM

It’s been a treat to watch the entire legal establishment – even the libertarian-leaning Volokh Conspiracy – have the vapors: “Judges don’t do things like that!”

The rest of us, I think, are mildly enjoying this as an example of ‘the biter bit’.

PersonFromPorlock on April 5, 2012 at 8:06 PM