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Apr 4, 2012 
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Pardon me, President Obama?
Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.
Pardon me, Mr. President, but kindly think this thing through before you talk, or shut the fuck up. This is incoherent. You don't agree with conservatives about "judicial activism." Even conservatives don't agree with the conservatives about "judicial activism." You're supposed to be on the side the supports a strong judiciary evaluating the constitutionality of laws, whether they are popular or not. Granted, your side has completely abandoned the concept of judicial review of the scope of the government's power to do things, as opposed to whether government actions violate enumerated or unenumerated rights. But Mr. President, this can't be your argument. You are not arguing on the internet. "This is a bad argument, and generally I don't agree with it, but because they use it, I will use it too, that's only fair," is not a position for a leader of any sort, let alone the leader of a party or of the "free world."
Ahem.
Pardon me, Judge Jerry Smith?
Smith: Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?
Kaersvang: Yes, your honor. Of course, there would need to be a severability analysis, but yes.
Smith: I’m referring to statements by the president in the past few days to the effect…that it is somehow inappropriate for what he termed “unelected” judges to strike acts of Congress that have enjoyed — he was referring, of course, to Obamacare — what he termed broad consensus in majorities in both houses of Congress.
. . . .
I would like to have from you by noon on Thursday… a letter stating what is the position of the attorney general and the Department of Justice, in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president’s statements and again to the position of the attorney general and the Department of Justice.
Look, Your Honor, I know that I've judicial bloviation is often more about generic judicial self-indulgence than it is about the specific matter bloviated about. But this was unjudicial, unprofessional, and an embarrassment to the rule of law. You took an off-the-cuff comment at a press conference by the President and turned it into a homework assignment for a lawyer at oral argument in a fit of political pique. You've been on the bench since the Reagan administration, Your Honor, and if you're going to tell me you've never heard a Republican administration gripe about judicial activism, or that you've heard it but never bothered to give the Reagan or Bush I or Bush II Department of Justice an assignment on judicial review, I'm going to tell you that you're a partisan hack.
Gentlemen. Please. Mind the dignity of your offices, if you would.
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