When the 5th Circuit speaks, the Justice Department listens – and responds.

In a memorandum to a panel of federal judges hearing a challenge to the federal health care law, Attorney General Eric Holder backed comments made earlier in the week by President Barack Obama that courts ought to tread lightly when considering challenges to laws passed by Congress.

But Holder said the president’s comments in no way reflected a change in the Justice Department’s views on judicial authority, nor did they imply that courts do not have authority to consider constitutional challenges to federal laws.

Earlier this week, Obama suggested at a news conference that overturning the health care law would amount to “judicial activism.”

For more on Holder’s memo, see the full story on Lawyers USA online.

Meanwhile, Senate Minority Leader Mitch McConnell has chimed in on the matter.

“The president crossed a dangerous line this week. And anyone who cares about liberty needs to call him out on it,” McConnell said during a speech on Thursday, according to CNN. “Respectfully, I would suggest the president back off.”

Yesterday, Senate Majority Leader Harry Reid had an offer he hoped Senate Republicans would not refuse: a quick vote on the GOP-backed Jobs Act in exchange for bringing 17 judicial nominations to a vote.

But according to NBC’s Libby Leist (via The Wall Street Journal’s Law Blog) Republicans rebuffed the move, accusing Reid of holding up the jobs bill to force a vote in nominated federal judges. Republicans have been blocking judicial nominees in protest of President Barack Obama’s recent recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau.

In making the offer for a swift vote on the JOBS bill, Reid said on the floor: “The only thing preventing the Senate from moving quickly to tackle [the JOBS Act] is what we’ve had this whole Congress: obstructionism by my friends, the Republicans.”

But Senate Minority Leader Mitch McConnell fired back. “I think most Senators would rather be working on things that the American people believe would actually help create jobs than to see the Senate embroiled in another controversy which I fear my good friend, the majority leader, is seeking to precipitate,” McConnell said.

Newt Gingrich isn’t the only GOP presidential candidate with plans to revamp the judiciary.

Former Sen. Rick Santorum talked about his plans for federal courts last week. Among his ideas: abolishing some federal courts and taking other measures to rein in the judiciary.

“The third branch of government is in fact too powerful in the structure of government today with respect to checks and balances,” Santorum told a New Hampshire crowd, according to the National Journal. “They have become a super legislature. They have become in effect most powerful of the three [branches of government], and they should be the least.”

Although Santorum said his ideas fall to the right of that of most Republicans – he would, among other things, do away with the 9th Circuit entirely – he said he believed Gingrich’s plan to subpoena and arrest judges and bring them before Congress to explain rulings adverse to the White House  goes a “step too far.”

As critics of Justices Clarence Thomas and Elena Kagan amplify their calls for the justices to recuse themselves from the health care case, Chief Justice John G. Roberts used his annual year-end report on the judiciary to defend his colleagues.

But in doing so, did the chief justice take a swipe at federal judges on the nation’s lower courts? At least one thinks so, according to The Atlantic’s Andrew Cohen.

In explaining why Supreme Court justices need not be bound by the exact same judicial codes as lower court judges, Roberts pointed out what he saw as some differences between justices and judges.

“The Supreme Court consists of nine members who always sit together, and if a justice withdraws from a case, the Court must sit without its full membership,” unlike federal courts where recused judges are replaced, Roberts wrote. “A justice accordingly cannot withdraw from a case as a matter of convenience or simply to avoid controversy. Rather, each justice has an obligation to the Court to be sure of the need to recuse before deciding to withdraw from a case.”

Those words angered one veteran federal judge, who wrote to Cohen in response, saying Roberts’ statement was “gratuitously insulting all judges and justices who adhere to the law.”

“The duty to sit is just as obligatory as the duty to recuse when the facts require or justify recusal. I don’t suggest that some judges may withdraw ‘as a matter of convenience or simply to avoid controversy,’ but if they do, they are beneath contempt,” commented the judge, whom Cohen did not name.

The judge added: “For ‘convenience or simply to avoid controversy,’ I have about 35 class actions, a death penalty habeas corpus case requiring my personal examination of over 10,000 pages of transcripts, briefs and opinions – to say nothing of the idiotic Fair Debt Collection Practices Act cases plaguing my docket that have all the sophistication of traffic violations – it would be a relief to withdraw from, if I had not taken an oath. I think it’s the same oath the chief justice took.”

Presidential hopeful and former House Speaker Newt Gingrich said he’d ignore Supreme Court rulings that infringe on his authority as commander-in-chief, and that he’d subpoena judges who disagree with his stance  as president – sending U.S. marshals to arrest and haul the judges before Congress, if necessary.

The GOP candidate said, however, that his preferred method for dealing with “activist judges” would be to impeach them.

“I got into this originally because of two things: the steady encroachment of secularism through the courts to redefine America as a non-religious country and the encroachment of the courts on the president’s commander-in-chief powers, which is enormously dangerous,” Gingrich to host Bob Schieffer Sunday on the CBS News program “Face the Nation,” according to a Reuters report.

When Gingrich raised the prospect of having a judge subpoenaed over a court ruling, Schieffer pointed out some issues that might raise.

“Some people say that’s unconstitutional,” Schieffer said to Gingrich, according to the ABA Journal. “But I’ll let that go for a minute. I just want to ask you from a practical standpoint, how would you enforce that? Would you send the Capitol Police down to arrest him?”

“If you had to,” Ginrich replied.

“You would?” Schieffer pressed.

“Or you instruct the Justice Department to send the U.S. Marshal,” Gingrich said.

UPDATED AND CORRECTED: Because sometimes this blogger writes a little too early in the morning before her eyes are fully working properly, this blog post erroneously stated that more than 90 percent of suggested federal judge nominees received the poorest rating from the ABA vetting panel. It was actually the reverse – more than 90 percent did not receive that rating. DC Dicta regrets the error.

The vast majority of the Obama administration’s potential judicial nominees were rejected before they reached the nomination stage – all due to poor ratings by the American Bar Association.

The New York Times reports that the ABA’s judicial vetting committee gave more than 90 percent of the president’s proposed federal judgeship candidates ratings of “not qualified.” Correction: the committee gave 14 or 185 judge candidates the rating of “not qualified.”

In three years, the committee has already given the lowest rating to more potential Obama nominees than it gave to potential nominees during the eight-year administrations of President Bill Clinton or President George W. Bush, according to the Times report.

The identities of the particular nominees who were rejected has not been disclosed, but according to the sources cited in the Times report, most were women or members of minority groups. The Obama administration has expressed a policy goal to diversify the benches of the nation’s federal courts.

Obama’s White House counsel, Kathryn Ruemmler, said in a statement: “Although we may not agree with all of their ratings, we respect and value their historical role in evaluating judicial candidates. The president remains committed to addressing the judicial vacancy crisis with urgency and with qualified candidates who bring a diverse range of experience to the bench.”

In a strange twist in the ongoing court battles over the Obama administration’s health care law, the 4^th Circuit today threw out a challenge to the law’s constitutionality, ruling that the law’s individual mandate is essentially a tax, and tax provisions cannot be challenged before they go into effect.

In the 2-1 ruling, the court held that the Anti-Injunction Act strips the court of jurisdiction to consider a challenge to the Patient Protection and Affordable Care Act. Because taxes cannot be challenged before they go into effect, and the individual mandate does not go into effect until 2014, the court vacated a lower court ruling upholding the law with instructions to dismiss the case for lack of jurisdiction.

In a separate ruling, the court also held that the state of Virginia lacked jurisdiction to challenge the law.

This is the second federal appellate court to consider the challenge to the law. In July the 6^th Circuit upheld the law’s constitutionality. Challengers in that case filed a petition for certiorari, and the U.S. Supreme Court could take the case up during its next term, which begins next month.

More on these rulings as well as ongoing coverage of the challenge to the health care law to come on Lawyers USA online.

“There isn’t anything that can be done until this nation decides it doesn’t need that much controversy over anything.”

~ Retired Justice Sandra Day O’Connor, speaking to Montana law students about the increasingly contentious nature of the Senate confirmation process for federal judges, according to The Missoulian. (HT: How Appealing).

As the debate heats up over what recusal standards, if any, justices of the U.S. Supreme Court should be bound by, there remains the related issue: when a justice recuses, the problematic possibility of a 4-4 tie is born.

But Indiana University School of Law Professor Gerard N. Magliocca suggested a possible solution to that problem: federal circuit judges sitting by designation on the high court when a justice sits out.

In a post on the blog Concurring Opinions, Magliocca writes: “After all, we let federal district judges sit by designation in the circuits all the time.  This could be subject to some limits (only active judges, or not judges from the federal circuit whose ruling is being reviewed), the most of important of which is that the selection should be random instead of under the control of the Chief Justice. I think the judicial system might be improved if the Justices were subject to the same recusal standards that other judges follow and if there was an occasional ‘special guest star’ appearance by other judges on the Court.”

Remember those two Supreme Court rulings involving firefighter applicants  – one ordering New Haven to certify entrance exam results that excluded a large percentage of minority job applicants (Ricci v. DeStefano) and another allowing a disparate impact claim to be brought by black firefighter applicants who say they were excluded based on the results of an application test (Lewis v. Chicago)?

And remember how folks predicted that the rulings would put employers in a damned-if-you-do, damned-if-you-don’t kind of situation? (After the Lewis ruling, Chicago’s Corporation Counsel Mara Georges said: “The employer is placed in a Catch-22: Use the exam results, which have an adverse impact, and risk lawsuits from the group adversely impacted. Or disregard the exam results, and risk lawsuits from those who stand to benefit from the results.”

Well, that situation seems to be happening in New Haven.

A 2^nd Circuit ruling yesterday allowed the black firefighters excluded by the entrance exam result sin Ricci to proceed with a disparate impact claim, despite the fact that Supreme Court ordered the city to certify the results, and the city entered a multi-million-dollar settlement with the Ricci disparate treatment plaintiffs last month.

The plaintiff in the disparate impact case claims the test used by the city was bad, and the city should have chosen one that did not have the effect of excluding most minority applicants. And his attorney said there is no Catch-22.

“I don’t think it’s a paradox,” David Rosen told the Wall Street Journal.  “Even though the city didn’t bother to go out and find it and produce it, there is a lot of evidence that the test was a bad test. So we would like our day in court.”

The Supreme Court was anticipating that a disparate impact suit would follow in the Ricci case. That decision stated: “If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”

But yesterday the 2^nd Circuit called that language “a single sentence of dicta.”