Our Heroic Lower Court Judges 

The Department of Justice has declared war on the federal courts, conveniently omitting the Supreme Court. This is not the surmise of some liberal pundit. It is not an inference drawn from the rant of Emil Bove, now a federal judge, once Trump’s personal lawyer and a high-ranking Justice Department figure. Bove is said to have told his colleagues, after they had ruled against the government in a Venezuelan deportee’s case, “F… the courts.” Bove’s behavior raised eyebrows at the time, but the criticism largely subsided after the Senate confirmed him for the Third Circuit bench.  

But when Deputy Attorney General Todd Blanche told the Federalist Society in November that we must declare war on the courts for bad decisions, there is reason to fear that the independence of the judiciary is seriously undermined. 

Specifically, Blanche attributed the Trump administration’s myriad losses in the lower federal courts to “rogue activist judges,” claiming that these “liberals” are “more political or certainly as political as the most liberal governor or D.A.” As Blanche continued, “There’s a group of judges that are repeat players, and that’s obviously not by happenstance, that’s intentional, and it’s a war, man.” Blanche called it a “war” three times in his speech.” He said we have a “travesty when you have an individual judge able to stop an entire operation or an entire administrative policy that’s constitutional and allowed just because he or she chooses to do so.” But isn’t that precisely what judges are supposed to do? Nevertheless, Blanche thundered, “So, it’s a war.” 

The “war” is being fought on many fronts. Blanche speaks for Attorney General Pam Bondi, who filed a senseless misconduct complaint against Chief Judge James Boasberg of the D.C. district court; White House Rasputin Stephen Miller intermittently decries each adverse ruling against the Trump administration as a “judicial insurrection”; and, although it has been postponed, the Senate Judiciary Committee had been set to convene a hearing on claims of misconduct by two district judges.  

Supreme Court Justice Ketanji Brown Jackson said at a conference of judges and lawyers last May, “These attacks are not random; they seem designed to intimidate those of us who serve in this critical capacity. The threats and harassment are attacks on our democracy, on our system of government. “And they ultimately risk undermining our constitution and the rule of law.” Jackson called on the judges in the room to show “raw courage” and dispense justice without fear of any outside consequences. “I urge you to keep going, keep doing what is right for our country, and I do believe that history will vindicate your service.”  

Court orders must be obeyed unless and until reversed. This is a particular duty imposed on Justice Department lawyers sworn to uphold the Constitution. When this obligation is repudiated, tyranny reigns. There is no reason for the executive branch to delegitimize the judicial branch unless it fears that judges will hold it accountable. Judges today face calls for their impeachment, threats of violence, and instances where their orders are not obeyed. 

One would have thought that political impeachment of judges was settled in 1805, when the Democratic-Republican President Thomas Jefferson sought to impeach the Federalist Justice Samuel Chase. Chase had been a founding father and a signer of the Declaration of Independence. Pre-Chase, there had been one prior Senate impeachment of a judge; in that case, the jurist was removed for drunkenness and insanity. The Chase case required the Senate to explore the meaning of impeachable crimes. 

The Senate record refers to Chase as “a staunch federalist with a volcanic personality.” His fiery rhetoric often drew public attention and criticism, particularly from the Democratic-Republicans who controlled Congress. His conduct, especially his partisan commentary during jury charges, further fueled calls for his impeachment. 

Jefferson became incensed when he learned that Chase had charged a grand jury in a way the president believed had an unfair political slant. So, he wrote to the House and asked them to impeach. The bill of impeachment accused Chase of acting with bias. The articles also addressed rulings he made in cases involving treason and sedition, including refusing to dismiss allegedly biased grand jurors and excluding or limiting defense witnesses in politically sensitive cases. The House impeached Chase for “high crimes and misdemeanors,” and he stood trial in the Senate, declaring that he was being prosecuted for his politics rather than for any crime. The Senate presided over by Jefferson’s vice president, Aaron Burr, who was a fugitive from justice, having killed Alexander Hamilton in a duel the preceding year, failed to convict, even though Jefferson’s party held a super majority. Chase resumed his judicial duties.  

The failed impeachment set a precedent. A federal judge, appointed for life, does not sit at the pleasure of the Senate. We have learned that the Constitution requires judges to tell us what the law is. They should not be impeached for rulings with which the party in power disagrees. Judges should be impeached for outright criminal behavior, such as, to use a true-to-life example, receiving extravagant gifts from parties with business before the court.  

Stephen Vladeck, the Constitutional scholar, called Blanche’s statements “shamelessly hypocritical; and profoundly dangerous.” He wrote in his Substack One First, “The galling part is that Blanche never actually explains which of the more than 100 federal district court judges (to say nothing of the dozens of circuit judges) to rule against the Trump administration are ‘rogue activist judges.’ And all he really could provide as support for why they are “rogue activist judges” is because they are … ruling against the Trump administration.” Blanche said that “these Article. III judges [are] literally telling the president, the executive, what he can and cannot do.” 

And that is precisely what Article III judges are supposed to do. Blanche reminds us of Louie, the corrupt police chief in Casablanca who cynically said as he collected his winnings in Rick’s café, “I am shocked, shocked that gambling is going on in here.”  

Blanche is parroting the “unitary executive theory” that the president has total power over the executive branch, and even the entire government. Nothing in the Constitution says that. The argument is that an untrammeled executive is implicit in the Constitution and is gathered from the provisions of Article II that the “executive power shall be vested in the president;” that he is “commander-in-chief” of the Armed Forces; that he has the appointment power; and that “he shall take care that the laws be faithfully executed.” These powers, however, are qualified. The appointment power often requires the consent of the Senate. The treaty-making power is subject to ratification by 2/3 of the Senate, and the power to declare war belongs to Congress, not Todd Blanche and not Pam Bondi. And until now, whoever heard of one branch declaring war on another? It is certainly no accident that these attacks on lower courts coincide with decisions that have proven to be the most effective brake on the lawless behavior of the Trump administration. 

 Autocracy is just around the corner. Checks and balances are a toothless tiger. A supine Congress has demurely handed over its authority to the president, and the Supreme Court has been Trump’s handmaiden. Consider that the oral argument this week presages that the Court may overturn a 90-year-old precedent and bless his firing of independent agency appointees under the unitary executive theory, which it has vastly overblown. Maybe it will come to its senses over Trump’s usurpation of tariff powers. And maybe not.  

But if there is war, only the lower courts, including judges appointed by Trump himself, have manned the ramparts. 

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