A series of actions by Republican-appointed judges illustrates an emerging trend of right-wing politics infecting the federal judiciary -- a trend that has broad implications for the public's reaction to the courts and on the media's role in explaining the politics of the courts.
In a series of as-yet isolated incidents, these judges and justices have attacked President Obama with viscous racial slurs, participated in political gatherings organized by the Koch brothers, recycled right-wing media talking points from the Supreme Court bench, and stepped far beyond any appropriate judicial role to lecture government lawyers about ongoing political controversies.
There is ample room for a debate about judicial philosophy and ideology. But as the federal courts have moved to the right ideologically -- one study found Bush's nominees to be "the most conservative on record" -- and partisan invective directed at President Obama continues to grow, a few judges have crossed over the line into politics. This distinction is important because the courts' legitimacy depends on the reality -- or at least the public's perception -- that they are apolitical and bound by law. Because citizens react negatively to politicized courts, when politicization becomes the reality it is the media's duty to report that reality. Cheerleading for politicized courts by right-wing media makes the need for highlighting the trend, and calling it what it is, even more urgent.
Judge Jerry Smith: Praised by Limbaugh, Blasted by Legal Experts
Judge Jerry Smith was appointed to the U.S. Court of Appeals for the Fifth Circuit by Ronald Reagan. On April 2, Obama made a short statement regarding his belief that it would be "unprecedented" for the Court to strike down landmark regulation such as the Affordable care Act. The next day, Smith injected himself into the political controversy by scolding a Department of Justice lawyer appearing before him (as part of a panel consisting of two other Republican-appointed judges) in an unrelated challenge to the health care law. Referring to the law as "Obamacare," and directly referencing the President's comments, Smith lectured the lawyer that the comments had "troubled a number of people who have read it as somehow a challenge to the federal courts, or to their authority, or to the appropriateness of the concept of judicial review." Smith then ordered the lawyer to submit a "three-page, single spaced letter" on whether the Department of Justice believes that courts have the power to review the constitutionality of legislation.
Rush Limbaugh praised Smith:
Now, I saw this and I started cheering. I started laughing. Because it's about time people started fighting back on this. The American people love the concept of a team. You have to have the right people on the team, but we are a team here. There is a team that's opposing this president, and attempting to make him a one-termer this November at the ballot box. It's great to have this response.
Judge Smith. By the way, I love the fact that he called it "Obamacare" from the bench.
While Judge Smith's behavior won him accolades in the right-wing echo chamber, actual legal experts criticized his actions. Jeffrey Toobin of CNN said Smith's comments amounted to "a judicial hissy fit," adding that Smith "performed a peculiar, if useful, kind of service to the public - reminding us of the partisan nature of much of the federal judiciary."
Orin Kerr, a law professor and former counsel to Senator John Cornyn (R-TX), also criticized Smith's behavior:
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.
Judge Richard Cebull: Author of Racist, Anti-Obama Email
Judge Richard Cebull was appointed to the U.S. district court in Montana by George W. Bush, and serves as chief judge of the court. Cebull admits that on February 20, 2012, he sent from his official courthouse email account an email that has been called "anti-Obama" and "racist":
The forwarded text reads as follow:
"Normally I don't send or forward a lot of these, but even by my standards, it was a bit touching. I want all of my friends to feel what I felt when I read this. Hope it touches your heart like it did mine.
"A little boy said to his mother; 'Mommy, how come I'm black and you're white?' " the e-mail joke reads. "His mother replied, 'Don't even go there Barack! From what I can remember about that party, you're lucky you don't bark!' "
When the email became public, Cebull offered a "defense" that served to underscore his partisan disdain for the President:
The only reason I can explain it to you is I am not a fan of our president, but this goes beyond not being a fan [....] I didn't send it as racist, although that's what it is. I sent it out because it's anti-Obama.
Justices Scalia and Thomas Featured as "Notable Leaders" In Koch Political Materials
In invitations for a political retreat, Conservative financier Charles Koch highlighted past appearances by "notable leaders" including Justices Antonin Scalia and Clarence Thomas. When news of Thomas' participation in the gathering first became public in early 2011, a Supreme Court spokesperson said Thomas had made a "brief drop-by" at the event, and given a talk. Thomas' annual financial disclosure form subsequently revealed, however, that the conservative Federalist Society had reimbursed him for four days of "transportation, meals and accommodations" in Palm Springs, California, the site of a Koch political meeting.
Scalia Recycled Right-Wing Talking Points At Oral Argument On The Affordable Care Act
During oral argument on the Affordable Care Act, Justice Scalia recycled false and misleading talking points promoted by the conservative media, such as the "broccoli mandate' and the "Cornhusker kickback."
By the nature of their role to "say what the law is," courts can never be immune from political controversy. Progressive judges have long inhabited uncomfortable terrain in which they and their judicial philosophies are routinely criticized by conservative political leaders. Conservatives routinely attack the U.S. Court of Appeals for the Ninth Circuit, but Ninth Circuit judges have not responded with a Judge Smith-style outburst. If greater public interest in the courts and Constitution means that we are entering an era when conservative judges receive much the same treatment as their progressive counterparts, they can be expected to weigh the costs of entering the political fray.