The Fifth Circuit judge made his frustrations about Obama very clear earlier this week. But where was his fury when a fellow judge's life was threatened?


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As far as history goes, the most enduring thing to come out of President Barack Obama's combustible remarks this week about the Supreme Court and the Affordable Care Act is likely the sua sponte court order issued in person Tuesday by Fifth U.S. Circuit Court of Appeals Judge Jerry Smith. Angered by the president's remarks about constitutional precedent and judicial limits, the Reagan appointee interrupted oral arguments in an unrelated health-care case to order the Justice Department to prepare for his edification a three-page, single-spaced memo detailing the government's views about the judicial power to declare laws void.

Instantly, Judge Smith was a hero to a cause. He was credited for standing up to the president and for standing up for the concept of an independent judiciary. It didn't matter that no other federal judge dared publicly follow him into the breach. It didn't matter that the president immediately backtracked on his comments. And it didn't matter that Judge Smith already knew the answer to the question he forced the Justice Department to sketch out. No, Judge Smith's well-timed temper tantrum made him a symbol of lone courage -- standing up for a downtrodden judiciary being picked on by an overbearing executive branch.

Judge Smith sounded the alarm over judicial independence -- see how powerful a federal judge can be? He challenged the White House and Justice Department. And from a seat in his own courtroom he sure did go out of his way to bully those federal lawyers who had nothing to do with what the president had said. But you'll forgive me if I don't anoint him quite yet. Because you know who Judge Smith didn't stand up for? He never, even just once, stood up for U.S. District Judge Fred Biery, a fellow Texan, a fellow member of the judiciary, who for the past 10 months has been the target of vicious conservative political attacks.

Justice Anthony Kennedy will be fine without Judge Smith's cavalry charge. So will Chief Justice John Roberts. The Supreme Court has plenty of other defenders. And what President Obama said about the court, and about the Constitution, is downright timid compared with what some of his predecessors have said about the justices. But what Judge Biery has endured this past few months is outrageous. And you would think that an appellate judge who was so quick to scold the White House would have been equally willing to scold anyone who would disrespect one of his colleagues, and judicial independence itself, that way.


The story beings on June 1, 2011. On that day, Judge Biery issued a four-page order enjoining the Medina Valley Independent School District from including prayers at a high-school graduation ceremony scheduled for three days later, on June 4. In his brief opinion, Judge Biery cited 11 federal cases for the proposition that the plaintiffs who had sued to stop the prayers were likely to succeed on the merits of their claim under the Establishment Clause of the First Amendment. "This Court is bound to follow case law of the Supreme Court and the Fifth Circuit Court of Appeals," Judge Biery wrote.

The order was immediately appealed to the Fifth Circuit. Judge Smith was one of the three judges on the panel which reviewed the appeal. In a per curiam opinion, and without citing a single case as precedent, the appellate court wrote this:

On this incomplete record at this preliminary injunction stage of the case, we are not persuaded that plaintiffs have shown that they are substantially likely to prevail on the merits, particularly on the issue that the individual prayers or other remarks to be given by students at graduation are, in fact, school-sponsored. We also observe in particular that the plaintiffs' motion may be rooted at least in part in circumstances that no longer exist. For example, the school has apparently abandoned including the words "invocation" and "benediction" on the program. The motion also did not expressly address the involvement of the valedictorian in the graduation ceremony.

The graduation proceeded. The world did not end. The federal appellate process had worked as it does every single working day in America. Like every other federal trial judge in American history, Judge Biery had been countermanded by an appellate court. Like every other intermediate appellate court in American history, the Fifth Circuit had imposed its will to resolve a pressing dispute knowing that the Supreme Court wasn't likely to get involved. The appellate court didn't deride Judge Biery for his conclusions. It didn't label his ruling anti-Christian or anti-America. It merely announced that it disagreed.

Because the June rulings only dealt with the issue of preliminary injunctions, because they didn't resolve the dispute on the merits, The Medina case lingered on far beyond graduation. In fact, it was finally settled only this February, after discovery, after the school district paid $125,000 in costs, and after it compromised with the plaintiffs in several material respects over the tone and tenor of future school graduation ceremonies. In other words, Judge Biery wasn't nearly as wrong about the law as some of his critics had claimed he was. Here is the link to Judge Biery's February 9 order. In it, he offered his own "personal statement":

During the course of this litigation, many have played a part: To the United States Marshal Service and local police who have provided heightened security: Thank you. To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination: In His name, I forgive you. To those who have prayed for my death: Your prayers will someday be answered, as inevitably trumps probability. To those in the executive and legislative branches of government who have demagogued this case for their own political goals: You should be ashamed of yourselves.

Then, last month, Judge Biery had to write another order in the case. He captioned it the "Non-Kumbaya Order" and in just a few weeks it has become legendary in legal circles. In it, Judge Biery chastised members of the school board for publicly disparaging the plaintiffs in the case, the folks who had objected to the school graduation prayers, in direct contravention of the terms of the settlement the parties had reached. Before ordering school officials (under pain of contempt) to apologize for their comments, Judge Biery wrote this:

The Court does not expect the parties to hold hands and sing 'Kumbaya' around a campfire beside the Medina River. Nor does the Court expect the respondents superintendent and band director to engage in a public spectacle of self-flagellation for communicating words better left unsaid. Moreover, the Court does not expect plaintiffs to become traditional Trinitarian Christians, though the Court suggest plaintiffs might follow the moral and civility lessons of Matthew 5:29 ("If someone strikes you on the right cheek, turn to him the other also")....


Last fall, even after the hottest part of the Medina case had eased, its usefulness to Newt Gingrich endured. He began to cite Judge Biery's ruling at his campaign rallies, offering up the case as an example of an out-of-control liberal judiciary -- and of course downplaying the fact that Judge Biery's ruling was in place for all of two days. Here's the piece I wrote last October on this topic, right after Gingrich's bizarre remarks about judges nearly made CBS News' gray eminence Bob Schieffer fall off his Face The Nation chair. The piece contains the epic Gingrich quotes (which so many reporters over the past few days seem to have forgotten):

Now I said -- I mentioned Jefferson, but there are other steps you could take that -- that are far short of wiping out half the judges. One, you can hold hearings. I -- I think for the Congress to bring in Judge Biery from San -- San Antonio and say to him, explain to us your rationale --

AUDIENCE MEMBER: Yeah. (Applause.)

MR. GINGRICH: -- by what right will you dictate speech to the American people? How can you possibly take your court order and the First Amendment and tell us that this is about free speech? Just -- judges who knew that when they were radically wrong they'd be hauled in front of Congress would immediately have a sobering effect about how much power they have.

Gingrich also told his audience that he:

would instruct the national security officials in a Gingrich administration to ignore the recent decisions of the Supreme Court on national-security matters, and I would interpose the presidency in saying, as the commander in chief, we will not enforce this.

Congress has the power to limit the appeals, as I mentioned earlier. Congress can cut budgets. Congress can say: All right, in the future, the Ninth Circuit can meet, but it will have no clerks. (Laughter.) By the way, we aren't going to pay the electric bill for two years. (Laughter.) And since you seem to be -- since you seem to be rendering justice in the dark, you don't seem to need your law library, either. (Laughter.)

Other politicians echoed this nonsense -- Rick Perry, Michele Bachmann, Rick Santorum, they all pitched to primary voters one preposterous scheme after another to curtail what reasonable people would consider judicial independence. Bachmann, for example, wanted to preclude the Supreme Court from considering the constitutionality of same-sex marriage. Texas Gov. Perry called Judge Biery's ruling "reprehensible" and Sen. John Cornyn, a former Texas judge, said that Judge Biery's order "bristles with hostility to all things religious in public life." Poof! Judge Biery became an "anti-Christian" prop -- and subject to death threats.


And through all of this demagoguery Judge Smith said nothing to defend his colleague. (Nor, it should immediately be added, did any of his other colleagues on the bench in Texas). As a group, the judiciary remained publicly mute amid the threats against Judge Biery's family and the assault upon his judicial independence. One reason why is basic: All federal judges have to be careful about what they say, out of court, about their colleagues. But another reason is personal: It would have taken a true act of courage and charity for Judge Smith (or any other federal judge) to have spoken up for Judge Biery.

So eager to teach the president a lesson this week, so eager to thrust himself into the national spotlight by humiliating the Justice Department, Judge Smith didn't say boo to help Judge Biery. What could he have said? Well, he couldn't have specifically defended Judge Biery's ruling in the Medina case (especially since he had disagreed with it). The federal judges I've spoken with this week, including Judge Biery himself, were clear in saying that such public comments would be forbidden by their ethical rules and guidelines. But that doesn't mean that Judge Smith was precluded from saying anything about the roiling controversy over his colleague.

For example, Judge Smith might have exercised his rights and privileges under Canon 4 of the Judicial Code of Conduct, the ethical guidelines which govern all federal judges except Supreme Court Justices. Canon 4 states that:

A judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects. However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge's office, interfere with the performance of the judge's official duties, reflect adversely on the judge's impartiality, lead to frequent disqualification, or violate the limitations set forth below.

(A) Law-related Activities.

(1) Speaking, Writing, and Teaching. A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.

Under this canon, Judge Smith could have reasonably and properly discussed how "the administration of justice" cannot fairly function when federal judges are threatened with their lives or with Congressional subpoenas. He could have discussed, under the rubric of "the legal system," the notion that trial-court judges are reversed on appeal all the time and that this doesn't make them subversive or "anti-Christian." Judge Smith wouldn't have had to mention a single person or a single case to make his point. Everyone would have known what he meant. And it might have made a difference to Judge Biery.

This situation has unfolded many times before. And many times before judges have spoken up in this way on behalf of one another. U.S. District Judge William Young, formerly the chief district judge of Massachusetts and the judge who famously sentenced shoe-bomber Richard Reid to life in prison in 2003, shared this story with me Thursday:

My own ethical view is that judges have every right (perhaps a duty) to speak out on issues of judicial administration. See e.g. all my spouting off about the vanishing jury. This includes defending another judge from unwarranted attacks that reveal a misunderstanding of the judicial role. It is far from unprecedented. In my own experience, it happens more frequently in the state courts than the federal. Massachusetts Lawyers Weekly once commented that I was the most reversed judge in the First Circuit with the innuendo that, as a consequence, I wasn't much good. Justice Breyer, then chief in the First Circuit, came to my defense, pointing out that the first point had no bearing on the second.

And yet Judge Smith said nothing. It was only when President Obama made his remarks Monday that Judge Smith decided that enough was enough. Odd, isn't it, that Judge Smith stomached Republican plans to subpoena judges to Capitol Hill and death threats against one of his colleagues, but couldn't stomach President Obama's ham-handed remarks about precedent and "activism." Odd, too, that Judge Smith would conclude that publicly humiliating the Justice Department Tuesday would impugn his judicial neutrality and credibility less than telling Gingrich and company to stop using Judge Biery as their convenient prop.


Judge Smith saw his chance to make a point about judicial independence this week -- and he took it. As someone who has written consistently about judicial independence, as someone who takes a backseat to no one in chronicling how destructive attacks upon judicial independence are to the fabric of society, I get that. I like it when a feisty federal judge crops up from somewhere to throw a brush-back pitch to the other branches. The problem here, though, is that for six long months Judge Smith had a chance to make a far more compelling and poignant point about judicial independence by defending Judge Biery -- and didn't.

The irony here is striking. All of this has taken place against the backdrop of the Fifth Circuit. It is the same federal appellate circuit which 50 years ago saw some of its judges similarly threatened and ridiculed over their civil-rights rulings. It is the circuit of J. Skelly Wright, the native Louisianian who was nearly run out of town for trying to enforce civil-rights precedent. It is the circuit of Elbert Tuttle, long the chief judge of the circuit, who was instrumental in giving practical meaning to that precedent. Those brave men, I daresay, would not have kept quiet while one of their colleagues endured what Judge Biery has endured.

I am focusing here upon Judge Smith because he's the one who opened his mouth. But what about the other judges down there in Texas who might have helped set Gingrich straight? And what about the chief justice of the United States himself, John Roberts, who failed or refused to even mention the serious problem this past January in his State of the Judiciary remarks? Even the chief justice's friend and mentor (and predecessor) William Rehnquist, late in his life, mentioned the scourge of political attacks on judges. But from this court? Nothing. The silence sends a terrible message and encourages precisely the sort of wildcatting we've just seen with Judge Smith.

Let's be honest. The main threat against "judicial independence" this election cycle has not come from the White House or the Justice Department. It has come squarely from the Republican primary challengers, their tribunes, and conservative office-holders. By ignoring the past months of anti-judge hysteria in and around his very own state, and by elevating the president's remarks this week to a form of slander, Judge Smith performed a double disservice to the public. Smith should have kept his mouth shut this week. Either that or he should have spoken out long ago against the demagogues hounding his colleague. He's no hero to me.

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