Bush attorney general defends judge’s probe of Obama healthcare comments

A former attorney general on Wednesday defended the federal judge who demanded an explanation of comments President Obama has made about the Supreme Court and healthcare reform.

Judge Jerry Smith, who sits on the 5th Circuit Court of Appeals, ordered the Justice Department to file a three-page letter explaining whether it believes courts have the power to strike down federal laws.

Smith’s order was a response to comments in which Obama said that it would be “unprecedented” for the Supreme Court to overturn his healthcare law. Smith said it appeared that Obama was questioning whether courts have the right to strike down federal laws, which they unquestionably do.

Smith, who was appointed by President Reagan, issued his unusual order during a healthcare case separate from the challenge now before the Supreme Court. His demand has raised eyebrows across the legal community. But former Attorney General Michael Mukasey defended Smith on Wednesday.

Obama did seem to be second-guessing the court’s well-established power to review federal laws, Mukasey said in a Fox News Channel interview.

“That’s why the founders put the Supreme Court there. That’s right in the Federalist papers,” he said. “But when the president calls that into question, the court has, it seems to me, every obligation to sit up and take notice.”

Mukasey, who was President George W. Bush’s last attorney general, said it’s noteworthy that Smith demanded a three-page, single-spaced response from the Justice Department.

“Here, what they were saying is we don’t want some smart-alecky, off-hand response,” Mukasey said. “We want three single-space pages with a serious discussion. That is unprecedented.”

Orrin Kerr, a professor at George Washington University and a prominent legal blogger, called Smith’s order “highly inappropriate.” Reaching into unrelated cases and political statements “just makes the judges look like political actors themselves, which doesn’t help anyone,” Kerr wrote at the Volokh Conspiracy blog.

Obama softened his tone toward the Supreme Court on Wednesday, clarifying that he believes the court should uphold the healthcare law but that its decision will be the final say.

“The 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,” Obama said.

---