Jerry E. Smith, Federal Judge Upset By Obama's Supreme Court Comments, Defended By Colleagues

NEW ORLEANS — A federal judge who called out President Barack Obama for saying it would be "unprecedented" for the Supreme Court to strike down a law like his administration's health care overhaul is a conservative voice on what may be the nation's most conservative appeals court.

But those who know Judge Jerry E. Smith from his years on the 5th U.S. Circuit Court of Appeals in New Orleans and earlier days in Texas politics paint a more complex portrait of someone who isn't afraid to buck the party line.

"He takes his judicial responsibilities very seriously and is very careful to stay out of any political controversy," said Ilya Somin, a George Mason University law professor who clerked for Smith in 2001 and 2002.

Somin said Smith is so careful to remain impartial that he refused to recommend restaurants worth visiting in Houston and New Orleans during a 2003 interview with a blogger. The blogger, Howard Bashman, quoted Smith as saying "it might be improper for a judge publicly to endorse a particular commercial establishment."

Although Smith was a Republican Party activist in Texas before President Ronald Reagan nominated him for a seat on the 5th Circuit in 1987, Somin and other former clerks say they never saw any evidence politics factored into his work on the appeals court.

Stephen Henderson, a University of Oklahoma law professor who clerked for Smith in 1999 and 2000, described him as a warm man who embodies "what every appellate judge should aspire to be."

"Judge Smith is not about grandstanding. If he asks a question from the bench, it's an honest question," Henderson said. "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."

During a hearing Tuesday for a case that is separate from the Supreme Court's review of the health care law, Smith ordered the Justice Department to submit a letter affirming the federal court's authority to strike down laws passed by Congress.

In a letter Thursday responding to Smith's order, Attorney General Eric Holder offered assurances that the Obama administration respects the authority of the courts.

"The longstanding, historical position of the United States regarding judicial review of the constitutionality of federal legislation has not changed," Holder wrote.

Smith's office in Houston declined interview requests this week, and said the judge would not be commenting on the ordered letter because the case before his court is pending.

Smith's reference to "Obamacare" during Tuesday's hearing became fodder for the polarizing debate over health-care reform, but a Democratic Party activist who crossed paths with Smith before he became a judge remembers him as someone willing to cross party lines and work outside the mainstream of his own party. David Jones, a Houston lawyer, said Smith's grassroots work and early support for Reagan made him a GOP "outsider" at the time.

"He was never part of the good-old-boy crowd, and neither was I," Jones said.

Smith, a 1969 graduate of Yale University who also got his law degree from Yale Law School, had a private law practice in Houston from 1973 to 1984. He also served as Harris County GOP chairman in the late 1970s.

Smith and Jones once supported the same Democratic candidate, Kathy Whitmire, who was the first woman elected mayor of Houston. Whitmire appointed Smith to be the city's top attorney in 1984.

Some women's groups initially expressed opposition to Smith's nomination to the 5th Circuit because of disparaging comments he reportedly made about women while serving as GOP county chairman. A July 1987 article in the Houston Chronicle says Smith had labeled feminists as a "gaggle of outcasts, misfits and rejects" and referred to the League of Women Voters as the "Plague of Women Voters."

But backing from Whitmire and other supporters helped quell opposition to his confirmation. Jones said he also put in a good word for Smith with the Judiciary Committee and its then-chairman, Sen. Joe Biden, after Smith called him "out of the blue" and invited him to lunch, seeking his help.

"I knew that we weren't on the same side, but I knew he was honest," Jones said.

Jones said lawyers who argue death penalty and abortion cases before the 5th Circuit often give him grief when they find out he spoke out in favor of Smith's nomination.

"They say, `I really wish you hadn't done that,'" Jones said with a laugh.

Somin, who himself wrote a Supreme Court amicus brief for the Washington Legal Foundation in favor of striking down the federal health care law's individual mandate, said Smith hasn't been shy about taking positions many conservatives wouldn't support.

"You don't need to take my word for it because the decisions are available in the public record," he said.

Somin cited two of Smith's opinions as examples: a 2003 decision that struck down a San Antonio ordinance restricting the location of adult businesses on First Amendment grounds, and a 2001 ruling in a drug case that held a homeowner has a "reasonable expectation of privacy" when police searched a vehicle owned by somebody else but parked on the homeowner's driveway.

More recently, Smith wrote the March 2 opinion when a three-judge panel upheld a landmark ruling that the Army Corps of Engineers is liable for New Orleans property owners' claims that shoddy work on a shipping channel caused billions of dollars in damage from Hurricane Katrina's storm surge. The panel rejected the federal government's argument that it is entitled to immunity from the plaintiffs' lawsuits.

"Judge Smith was not buying the company line," said Joe Bruno, one of the plaintiffs' lawyers in the case. "They affirmed a decision when the government thought it was a slam dunk for them."

James Garner, who also represented plaintiffs in the same case, described Smith as a "straight, fair, smart judge."

"He zeros in on the issues and asks the right questions," Garner said.

Also on HuffPost:

Comments

[Thomas Patrick Sullivan]

10:55 PM on 04/08/2012

The best we can say about Judge Jerry is that he far from the worst of Reagan’s judicial appointments. He is hard working and not afraid to speak his mind. In fact, he may have done Obama a favor by demanding a letter of explanation from the Justice Department. It was clearly an attempt to embarrass Obama and it backfired, giving Obama a platform to make their case.

Smith painted himself into a corner when he used the term “Obamacare”. This alone shows his true colors, a Right-wing nut and an “activist” judge; the very term that conservatives say about liberals. The shoe is now on the other foot

[cxexe]

12:10 PM on 04/08/2012

Holder is probably one of the last people to attempt to "lecture" anybody about anything that is proper or legal.

[Thomas Patrick Sullivan]

10:04 PM on 04/08/2012

That may be. However, it is his job to defend the President. He was not lecturing.:

~~ "...."The question posed by the Court regarding judicial review does not concern any argument made in the government's brief or at oral argument in this case," the attorney general wrote. "The Department [of Justice] has not in this litigation, nor in any other litigation of which I am aware, ever asked this or any other Court to reconsider or limit long-established precedent concerning judicial review of the constitutionality of federal legislation."~~~

Why are we making a mountain of a molehill when we have so many more intractable problems that need solving?

[lubasboy]

10:51 AM on 04/08/2012

thats bull its only when a democrat attacks the supreme court but when Bush did it in 2008 and other republicans its ok. Obama is a politician a federal judge is suppose to be non -partisan this guy is a joke who even used the word Obama care taking right out of the tea baggers book. he is a partisan hack. and every one in the judiciary know it. so please stop making excuses for him.

[ntmessage]

09:55 AM on 04/08/2012

The federal judges and the Supreme Court are all part of the Judicial Branch of government. When someone as powerful as the President attacks one of their own then one should expect another to defend against the blatant intimidation. Even if it matters not one wit to the outcome, allowing the President to set a precedent of his own to lobby the people and demonize the justices during the deliberation process of the Supreme Court; and essentially laying down to a President that bullies anyone doing their job and/or disagrees with him directly from the Bully Pulpit is the height of arrogance.

[marrmae1]

03:50 PM on 04/08/2012

F & F! Thank You!

[bptrav11]

05:00 PM on 04/08/2012

Another ranting post from the far right of belligerents. The President has every right to voice his opinion and only the right wing blows it up to be more then it actually is. This judge has no business to be lecturing anyone on bullying anyone. If you had read his pronouncement you would have seen the language this clown used to make his attack of the President. He sounded just like the rest of you Tea Baggers trying in your feeble way to make President Obama look bad. No one demonized or insulted the Court, but that never stopped the right from screaming and calling foul before, so why would that stop you people now.

[ntmessage]

10:52 PM on 04/08/2012

So sorry you feel everything is far left or far right. An Independent like me sees more truth everyday than most ideologues see in a year.

[karenmmn]

09:12 AM on 04/08/2012

Is there a gag order on this?

[genebo6]

05:06 AM on 04/08/2012

I think it's great for B O to speak out. Every time he opens his mouth it just to change feet

[Thomas Patrick Sullivan]

11:23 PM on 04/08/2012

You’re `comment` about Obama is so dazzling in its complexness and profundity and so inscrutable in its veracity that I am befuddled with amazement and wonderment to the point of utter exhaustion trying to interpret and fathom the intent and direction of your meaning.

Are you Romneys speechwriter, per chance? lol

[genebo6]

02:01 PM on 04/09/2012

It doesn't take much to dazzle and befuddle the left. Obama had been doing it to you for years

[useyourbrain]

08:46 PM on 04/07/2012

Holder should have repetitively declined the judges outrageous behavior towards POTUS. Does the judge know that of the three equal branches if government that POTUS is top dog then Congress and then the Judiciary. Judge was out if line to demand homework three page sible space type written. Appointed for life does not make him god or the hall monitor. I would have ignored it and date him to hold Holder in contempt.

Why didn't he demand a letter from Newt who wants to jail federal judges or Grassley who wants a committee to supervise and punish judges.

[RockLauren]

07:10 PM on 04/07/2012

Apparently Judge Jerry has changed a bit since his clerks from more than a decade ago knew him so well. His action sounds strangely like an alcohol thing to me.

Was Judge Jerry three (single spaced) sheets to the wind when he got bossy with the DOJ?

[bayonne]

03:53 PM on 04/07/2012

The real concern here is that an appellate judge took note of an extra-judicial statement that "troubled some people," as he put it. He interrupted the government's attorney during oral argument to ask her about that statement, and she replied with reference to Marbury v. Madison. For some reason, that did not satisfy the judge. He wanted written assurance from DOJ that the government was not taking the position that there could be no judicial review of the constitutionality of legislation. The government had taken no such position in its briefs and was not taking that position in oral argument. Nevertheless, the judge demanded that the written statement be delivered in 48 hours and insisted that it be at least three pages single-spaced.

It is astonishing that so many people consider this to be appropriate judicial conduct rather than a demonstration of personal pique over a reference to what "unelected judges" should in a separate matter before a different court. Judge Smith overstepped, and he should recognize that fact.

[art6111]

07:06 PM on 04/07/2012

Are you aware that court was hearing a case relating to another part of the Healthcare Law, so it was appropriate to ask whether or not the government thought that the courts had the right to declare a law was unconstitutional.
If the President took the position isn't the government taking a position?

[bayonne]

07:41 PM on 04/07/2012

I am well aware of what was before the 5th Circuit, which was unrelated to the issues before the Supreme Court. The fact that both cases arose out of the same statute is legally irrelevant. And what the President says in public has no bearing at all on the position the government takes in a specific case. There are relatively clear limits on what is appropriate for judicial notice, as specified in the Federal Rules of Civil Procedure and in the case law thereon. You could look it up if you cared.

And the government's attorney specifically told the judge that she was not contesting the validity of Marbury v. Madison. You can listen to the exchange on the HuffPost if you doubt that.

[edward60]

03:44 PM on 04/07/2012

A Tbag judge

[righteousindignation]

02:37 PM on 04/07/2012

During a hearing Tuesday for a case that is separate from the Supreme Court's review of the health care law, Smith ordered the Justice Department to submit a letter affirming the federal court's authority to strike down laws passed by Congress.

******
The case before his court relates to Obamacare - also - from a lawsuit filed by a Spine and Joint Clinic.

But leave it to the New Orleans Times-Picayune......democrat stronghold - about to have rigor mortis set in.

[l78lancer]

02:27 PM on 04/07/2012

Character witnesses always speak well of the defendant.

[msgirlintn]

02:14 PM on 04/07/2012

Republicans in their attempt to criticize the President conveniently "forget" the Republican Presidents that also criticized the SCOTUS. Reagan criticized the SCOTUS for the ruling on school prayer in his 1988 SOTU address. Reagan directly attacked the SCOTUS for Roe v Wade in his 1984 SOTU address. Bush condemned "activist judges" who are redefining marriage in his 2004 SOTU address.

[art6111]

07:09 PM on 04/07/2012

Notice that all made their comments AFTER the rulings were made, not before a verdict was announced. Were any of them "Constitutional Law Professors" (who did not seem to be aware of the precedent set in the early 1800's)

[Ladder 1]

02:02 PM on 04/07/2012

This president is so use to pointing the finger at Republicans and Bush for his failures that he jumped the gun on this one and had to "splain" himself. I cant believe Obama is a constitutional scholar....

[righteousindignation]

02:38 PM on 04/07/2012

neither can other people.

[mikec1230]

11:59 PM on 04/07/2012

Obama is a clown in the white house

[harpen1]

12:06 PM on 04/07/2012

"This veto of the Supreme Court decision is the right thing for America and the war against terror. Now that the Supreme Court's decision has been vetoed, I hope they get back to work and present me with a better decision that I can accept." July 6, 2006. I guess people have forgotten about the precedent that President Bush set here.