Judicial Good Behavior

Today, I read the latest court order in Planned Parenthood of Hidalgo County Texas v. Suehs about whether the State of Texas can cut off funding to the organization that provides basic preventive health care to nearly half of the participants in the states Women’s Health Program.

This is just the latest in the ongoing court battles about health care in America. Opponents of the Affordable Care Act, and especially, opponents of abortion are seeking to block health care reform through State Legislatures and the judicial system. In the Planned Parenthood case in Texas, a District Judge order a stay of implementation of a new Texas law that would defund Planned Parenthood. A judge on the Fifth Circuit, overrode that stay, allowing the law to go into effect. Then, a three judge panel, including that judge, overrode the judge's override.

So, who is this judge? Fifth Circuit Judge Jerry Smith. Does the name sound familiar? Perhaps it should. Judge Smith was appointed to the Fifth Circuit in 1987 by President Ronald Reagan. He attended Yale for both his undergraduate and his law degrees. In 1996, he wrote the majority opinion in a case in which the Fifth Circuit struck down the use of affirmative action in admissions to the University of Texas Law School. This decision was later overturned by the Supreme Court.

Yet recently, he has been making more news. Last month, he was the judge that ordered the Obama Administration to explain its position on judicial activism. It appears as if Judge Smith is in favor of judicial activism when it comes to overturning liberal laws, but in favor of judicial restraint when it comes to defending conservative laws. That is, he does not seem to possess a fair and even handed judicial temperament.

There is a long tradition of not criticizing judges, but with the Citizens' United decision by the Supreme Court, that has all changed. The Pew Research Center recently issued a report, Supreme Court Favorability Reaches New Low. The report notes that:

The court receives relatively low favorable ratings from Republicans, Democrats and independents alike.

While there have always been bad apples wherever you look, the U.S. Supreme Court has usually stayed above reproach. Yes, there was the Dred Scott decision a century and a half ago, but that is often viewed as an exception.

After the Citizens' United decision, Keith Olbermann compared Dred Scott to Citizens' United, and by extension, Chief Justice John Roberts to Chief Justice Roger Taney. We shall yet see if Citizens' United will be a greater threat to the United States as we know it than the Civil War was, or if Chief Justice Roberts shall suffer a similar fate as Chief Justice Taney. However, the current trends do not look good for Citizens' United or the esteem that our courts are held in.

Judges like Fifth Circuit Judge Jerry Smith only compound the problem of Americans' faith in the judicial system and endanger their own legacy. Wikipedia, as well as NNDB do not list Judge Smith as having been a judge, either at the district level, nor on a state court prior to becoming an Appellate Judge. No, Judge Smith's qualifications appear to come from having served on executive committee of the Texas Republican Party for over a decade.

NNDB lists his wife as Mary Jane Blackburn and Fundrace lists Mary Jane B. Smith of Houston Texas as having contributed $866 to Ted Cruz's U.S. Senate campaign back in 2009. Cruz has been endorsed by the Club for Growth, the Tea Party Express and lists repealing 'Obamacare' as one of his top priorities.

The Constitution says that judges "shall hold their Offices during good Behavior". Traditionally, "good behavior" has been determined by Congress for Federal Judges. However, given the low esteem that both Congress and the Supreme Court are held in, is it time to reconsider what "good behavior" is?

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