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RUSH: Now, yesterday afternoon a federal judge by the name of Jerry Smith at the Fifth Circuit Court of Appeals in Houston had had enough, and he demanded that the Justice Department give him a three-page memo on whether or not this administration understands the concept of judicial review. Now, I saw this and I started cheering. I started laughing. Because it’s about time people started fighting back on this. The American people love the concept of a team. You have to have the right people on the team, but we are a team here. There is a team that’s opposing this president, and attempting to make him a one-termer this November at the ballot box. It’s great to have this response.

In fact, do you know, ladies and gentlemen, I was told yesterday afternoon that today in the First Circuit, the Obama Justice Department is arguing that the Defense of Marriage Act is unconstitutional and therefore that court, the First Circuit, should have the courage to tune out politics and strike it down? Now, this administration said not long ago they’re gonna stop defending the Defense of Marriage Act. Now, the day after Obama goes out and says, “It’s unprecedented; the Supreme Court’s never overturned a law,” his own Department of Justice is asking the First Circuit to strike down the Defense of Marriage Act.

It’s just another bit of evidence that he knows what he’s doing. He knows he was lying through his teeth yesterday. He knows full well that courts strike down laws all the time, laws passed by Congress by whatever vote and majority. Here’s Jerry Smith. The microphones were in the courtroom in Houston yesterday, the Fifth Circuit. This was during oral arguments in a separate challenge to another aspect of the federal health care law. Jerry Smith, the judge, asked an Obama Department of Justice lawyer, Dana Lydia Kaersvang, about Obama’s remarks to the court that they shouldn’t overturn the health care reform law. Here’s the judge…

SMITH: Does the Department of Justice recognize that federal courts have the authority, in appropriate circumstances, to strike federal statutes because of win or more constitutional infirmities?

KAERSVANG: Yyyyes, Your Honor, I… 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, and I’m sure you’ve heard about them, that it is somehow inappropriate for what he termed “unelected judges” to strike acts of Congress that have enjoyed — and he’s referring of course to Obamacare — to what he termed a “broad consensus and majorities in both houses in Congress.” That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of concept of judicial review. And that’s not a small matter.

RUSH: No, it really isn’t. In the legal sphere, it isn’t a small matter. He’s calling these guys out. He was threatening, he was intimidating, he was warning these justices — and this guy not gonna sit back and take it. “Oh, yeah? Yeah? Give me some clarification on this.” And of course Department of Justice says, “Well, of course we know about judicial review! Of course courts can strike down law.” Well, you better tell your president. Here’s the point: While Obama is purely politicizing — while he’s got an audience there of what he thinks is enough dumb, uneducated people to believe that the court simply wants to take away health care from them — at the same time what he’s doing is having a major, profound effect on the court system in general.

He’s challenging their independence. He’s challenging their existence. And I’m gonna tell you, this judge speaking up? I’m gonna tell you: In my view, this judge is very brave. The One is going to look at this as insolence. Obama is gonna look at this and say, “How dare he! How dare he challenge me publicly like this! How dare he embarrass me! How dare this judge lift his hand up to me!” That’s gonna be the reaction. This judge has now made himself a target of the regime. We may never know how the regime decides to take action against this judge.

Judge Smith then continued…

SMITH: I would like to have from you by noon on Thursday — that’s about 48 hours from now — a letter stating what is the position of the Attorney General in 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 letters needs to be at least three pages single-spaced, no less, and it needs to be specific.

RUSH: Judge Smith. By the way, I love the fact that he called it “Obamacare” from the bench. And he tells this lawyer: You go back to your boss and I want three pages on this. This is like a college professor punishing a student who doesn’t quite understand what’s going on. You go back, and you get me three pages, no less, single-spaced. I can’t believe it. Single-spaced! He gets that specific. And it needs to be specific, because he wants these people on record. Obama’s out saying, “There is no such thing; that’s never happened.” Judge Smith wants Obama’s Justice Department to have it on paper from their office that essentially the president either doesn’t know what he’s talking about or is lying. That’s what’s going on here. These judges, folks, they serve for life. Their egos aren’t chump change, either. They have just the same kind of self-importance Obama does, and they’re gonna sit around here and be belittled like this?

It isn’t gonna happen.

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