Category Archives: Courts

Impeaching Judges

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Especially those who rule against Trump—that’s a bad idea, as The Wall Street Journal‘s editors correctly note. Doing this—even were it possible just once—would destroy the necessarily independent and coequal status of our judiciary.

Impeach judges who violate their oaths of office—certainly. This would apply not only to those who engage in “severe misconduct,” but also those who rule other than on the text of our Constitution or the statute before them in a specific case. Activist judges, and Justices, who rule on the basis of their view of a living constitution or on their personal view of the needs of society or how social requirements have evolved, are among those who are violating their oaths of office, which explicitly require them to uphold and defend our Constitution. Violating an oath, of office or of any other reason or purpose, would be an especially egregious and severe misconduct.

But therein lies the rub.

There is room for honest, textual disagreement on the meaning the text—the words and especially the phrases—present in our foundational documents and the statutes subsequently enacted to give flesh to them. Proving a ruling to be based on activism rather than on honest effort at textualism is deucedly hard. Moreover, even were a proof possible in a given case, the political implications would damage the perception of judicial independence, and that would be as damaging as any actual assault on judicial independence.

Better to take the longer view and elect Presidents and Senates who will nominate and confirm judges and Justices that will rule on the basis of Constitutional and statutory texts. Those confirmed would be good for several generations of election cycles and for a couple of generations of citizens. That would provide sufficient stability in law and court rulings.

In Which our Courts are Failing

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The question here is what standard courts should apply in matters of reverse discrimination. The question is laid out in The Wall Street Journal article’s lede:

Amid a MAGA-led backlash to diversity, equity, and inclusion policies, the Supreme Court on Wednesday will consider an issue that has split judges around the country: what do white people and other members of a majority group have to prove to win a claim for reverse discrimination?

(Aside: the newswriters’—Jess Bravin and Erin Mulvaney—irrelevant reference to MAGA illustrates their own and their editor’s political bias.)

The question is expanded in the second paragraph [emphasis added]:

Marlean Ames claims the Ohio state agency where she works denied her a promotion and then demoted her because she is heterosexual, instead giving both her old job and the one she had sought to gay people. A federal appeals court in Cincinnati threw out Ames’s lawsuit, finding that she failed to show the “background circumstances” suggesting the employer was hostile to straight people—a threshold step that wouldn’t have been required had a gay employee claimed discrimination.

As the writers noted shortly after:

The Civil Rights Act of 1964 forbids employment discrimination because of an “individual’s race, color, religion, sex, or national origin….”

Lauren Hartz, DC-located partner in Jenner & Block raised this bit:

We are in disagreement about what groups in American society today are advantaged or disadvantaged[.]

This is a wholly constructed and cynically dragged red herring. The only advantaged groups are those groups of Americans who get favorable treatment from our courts compared to other groups of Americans, and the only disadvantaged groups of Americans are those groups of Americans at whose expense that advantageous treatment comes.

Civil rights groups have raised another irrelevancy:

Many civil-rights groups say the occasional example of reverse discrimination doesn’t change history. Courts, according to a brief filed by the NAACP Legal Defense and Educational Fund, should be able to consider the “realities of this country’s persisting legacy of discrimination.”

The supposedly “occasional” nature of reverse discrimination is no excuse for any amount of that form of discrimination. Neither does it excuse the creation of a new legacy of discrimination for our future.

Thus: how about using the same standard for all cases involving allegations of discrimination?

How about judges and Justices hew to the text of black letter law and to the foundational text of the 14th Amendment of our Constitution?

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

That’s it in black and white; it’s not that hard to understand and to apply. As a Chief Justice of our Supreme Court said not so long ago, The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

There is no excuse for our court system, nor any judge or Justice within it, applying different standards of adjudication to different groups of Americans. Judges and Justices are violating their oaths of office when they do.

Speculative Lawsuits

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A collection of Leftist State Attorneys General led by New York’s Letitia James has filed an amicus brief in an existing suit against the Federal government over President Donald Trump’s (R) move to defund the Consumer Financial Protection Bureau. That might leave American banks without a government watchdog, they claim in their brief.

Furthermore, [t]he AGs didn’t accuse any banks of wrongdoing. These AGs further claim

The absence of a functioning CFPB…creates a regulatory vacuum even greater than what existed before the Great Recession. The very large financial institutions that compete with state-chartered banks will have carte blanche to loosen their regulatory compliance and profit accordingly.

Further, as cited by The Wall Street Journal,

The AGs argued that the administration is creating a regulatory gap that will encourage the largest banks to game the system by taking a more lax approach, while smaller state-chartered banks will still be subject to state supervision.

Might. Will have. And those two possibles in the latter: “will encourage” and “will still be.” These are purely speculative, with no harm being alleged. No actual wrong doing, in so many words, is being alleged. Basing a law suit, or even an amicus, on speculation about an unknown future—however likely plaintiffs might claim that future to be—is anathema in the American legal system. The requirement to allege—credibly—actual harm already done prevents a potful of frivolous, of politically motivated, of purely fee-seeking lawsuits where no harm exists, even where no harm is likely to exist in some nebulous future.

The Leftist AGs’ move is typical of the Left’s and their Progressive-Democratic Party politicians’ lawfare business.

This is yet another reason why it’s so difficult for us average Americans to have nice things in our nation. It’s time to start requiring plaintiffs to pay the defendants for the costs of lawsuits which plaintiffs bring and lose, and to require those providing amicus briefs on the side of plaintiffs to share in paying those costs.

Bonehead Idea

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Some Federal district judges, liberal activist judges for the most part, have issued temporary restraining orders against many of President Donald Trump’s (R) and his DOGE facility’s moves to root out empirically identified fraudulent and abusive spending and to physically downsize the Federal government through terminating Federal employees and eliminated whole agencies—the CFPB, for instance.

As a result of that,

Several House Republicans are preparing articles of impeachment against the federal judges who are blocking some of [those] President Donald Trump’s and Elon Musk’s key policies.

This is a textbook example of a bonehead idea.

Arizona Republican Congressman Eli Crane and Georgia Republican Congressman Andrew Clyde present the typical arguments for impeachment:

Our case for impeaching Judge Engelmayer is basically that he’s an activist judge trying to stop the Trump administration from executing their, you know, Article 2 powers to make sure that the laws are faithfully executed

and

I’m drafting articles of impeachment for US District Judge John McConnell, Jr. He’s a partisan activist weaponizing our judicial system to stop President Trump’s funding freeze on woke and wasteful government spending. We must end this abusive overreach

respectively.

It’ll be hard enough to prove, even in the House, much less at Senate trial, that these rulings are out of bounds for an Article III judge. Even were these Congressmen able to make the case that these judges, by their rulings, are violating their oaths of office—a certainly impeachable and convictable offense—it’ll be nearly impossible to get the two-thirds vote required for Senate conviction with so many Progressive-Democratic Party Senators in the Senate, given how knee-jerk opposed as they are to anything Trump or Republican.

In the end, these judges’ behaviors will be tacitly codified by the impeachments’ failures in the Senate, as those failures will lend credence to the judges’ naked activism. That would be even worse than the judges’ individual rulings.

The better answer is to exercise patience—something Republicans lack—and see the matters through the courts to the eventual appellate or Supreme Court rulings in their favor that will occur in the large majority of the cases.

In Which a District Judge is Mistaken

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DC District Judge Amy Berman Jackson has issued a temporary restraining order blocking the Trump administration from firing any CFPB employee except for cause, and cannot proceed with any large-scale reduction-in-force of staff. The judge is badly mistaken here.

The question centers on this: either the CFPB is part of the Executive Branch, or it is not. The answer is muddied, though not badly, by the then-Progressive-Democrat-controlled Congress’ cynical creation of the Board as funded by its own draws on the Federal Reserve Bank of the United States—draws of whatever magnitude the Board demands and that the Fed would be bound to pay up—and of its Chairman being unremovable by the President.

If the Board is not a part of the Executive Branch, then by its Design Specification, it is a fourth branch of the Federal government. It was designed to operate wholly independently of the Executive Branch and given free reign [sic] to operate similarly independently of Congress, which has wholly yielded up its purse string control of it. That would make the Board an unconstitutional creation whose existence must be ended on that ground.

However, the Supreme Court has ruled that, contra that Congress’ construction, the Board Chairman can, in fact, be removed by the President for any or no reason at all, because the Board is, in fact, an Executive Branch agency, and so under the control of the President, just the same as are all other agencies and Departments of the Executive Branch.

Since the Board is an Executive Branch agency, the President has the hiring and firing authority he needs to terminate any and all Board members and employees, subject only to already existing due process requirements. These requirements are in flux, too, as the President has considerable, although not total, authority to alter the nature of those requirements.

I look for the Supreme Court to rule in the administration’s favor (the DC Circuit is unlikely to overrule her).