Federalist Society Judges Acting Badly

 By Eric Segall

Leonard Leo's picks for lower court judges during the Trump administration were overwhelmingly white and male (with a few Asians thrown in). Almost all of them were associated with the Federalist Society either in school, as lawyers, and/or as judges. Although Leo (via Trump) nominated some fine people (Judge Kevin Newsom of the 11th Circuit, for example), many of his selections have also proven to be, and predictably so, awful. These men have joined other Federalist Society-adjacent judges appointed by previous Presidents to fight the culture wars both on and off the bench in ways that tar the federal judiciary with charges of partisanship and, in some cases, outright and unnecessary cruelty. Here are just a few of their stories and then a few thoughts on why these judges are acting so badly. All of the judges discussed herein, whether chosen by Leo during the Trump years or by other Federalist Society-adjacent lawyers during previous Administrations, have Federalist Society ties.

Let's begin with the protege of former United State Senator Jefferson Beauregard Sessions, Judge William Pryor of the Eleventh Circuit, who was appointed by President George W. Bush. In addition to hiring a law clerk who allegedly said that she "hates all black people," a hiring still in theory being investigated, Judge Pryor gave the opening address at the National Federalist Society Convention in November. During that address, Pryor called out and insulted by name a number of prominent liberal journalists and politicians--including Dahlia Lithwick and Mark Joseph Stern at SLATE, Elie Mystal of The Nation, and Senator Sheldon Whitehouse.  

According to Above the Law (ATL), Pryor spent "four minutes about the group’s history and 16 minutes whining about all the negative publicity FedSoc gets." Pryor quite sarcastically referred to Joe Patrice, who writes for ATL, as "one of the great journalists of our time at a venerable institution for investigative journalism."

This speech was mocking, mean, and potentially dangerous, given our current polarized climate. As Professor Steve Vladeck of the University of Texas remarked, the speech was "unbecoming for a federal judge." I had my own response to Judge Pryor when I was on a panel the next day at the convention. You can find it here

In any event, the Chief Judge of the Eleventh Circuit Court of Appeals showed his true self during this speech, and I urge readers of this post to watch it. Also, keep watching this blog for news about the on-going investigation into Pryor's hiring of the allegedly racist law clerk. (He has made no public statements about that hiring despite numerous stories in the national media concerning the controversy). 

Judge James C. Ho of the Fifth Circuit Court of Appeals was nominated by Leo/Trump and confirmed by the then-Republican-controlled Senate. Judge Ho's mean-spirited legal opinions are infamous but I'm not going to delve into that here. Instead, Ho made a national name for himself by publicly announcing (at a Federalist Society meeting of course) that he would no longer hire law clerks from Yale Law School (he was later joined in the boycott by Judge Elizabeth Branch of the 11th Circuit, who is the adviser to the Georgia Lawyers Chapter of the Federalist Society). Why you may ask? What was Yale's big sin? Apparently, Ho believes Yale has an unhealthy "cancel culture" that is rude to conservatives. Whether or not that is true, Ho was under no obligation to hire Yale clerks in the first place, so why make such a public fuss and call for other federal judges to join the "boycott?" 

One theory is that he is auditioning for the Supreme Court. Another theory is that he just likes publicity. Or maybe he is just a true, true believer in free speech values and is sincerely upset at Yale. But the theory does not matter. Except to the extent that actual cases before him sometimes call for judgments that are as much political as legal--which is substantially less frequently for a lower court judge than for the Supreme Court--Judge Ho has no business getting involved in culture wars and taking obvious political sides. To do so is inappropriate for a sitting federal judge.

Speaking of inappropriate, if you're reading this blog it is likely you have heard about the recent controversy at Stanford Law School and Judge Stuart Kyle Duncan (a Leo/Trump nominee). Before becoming a judge, Duncan worked for the Beckett Fund for Religious Liberty litigating  numerous cases against LGBTQ+ and reproductive rights. No surprise therefore that in a case involving a transgender prisoner, Duncan refused to use the prisoner's preferred pronoun. Duncan claimed that respecting transgender people's gender identities "may well turn out to be more complex than at first it might appear" because of a "galaxy" of genders. What a surprise that groups supporting LGBTQ+ rights strongly opposed his confirmation and were obviously right to do so.

Stanford Law School's Federalist Society invited Duncan to give a talk on campus. Progressive students acted badly by disrupting the speech. Duncan could have tried many ways to diffuse the situation but instead he made it much worse by calling the students names, storming out, and going straight to the media to tell his sob story. Mark Joseph Stern described what happened:

Duncan came prepared, striding into the room with his camera out to film the event so he could “make a record” of their demonstration. After an administrator and a student leader quieted the protesters, the judge skipped his speech and moved directly to Q&A. He then insulted various students (“you are an appalling idiot,” the judge told one) while refusing to engage with their questions. After departing, the judge embarked upon a conservative media tour, declaring that the “coddled law students” behaved like “dogshit” and urging Stanford to discipline them.

Needless to say, Judge Duncan's obvious desire to turn his talk into a media circus is far more important and dangerous than a few law students disrupting a speech. It is a good thing Stanford's Dean apologized to Judge Duncan; otherwise I suspect Duncan would have gone all James Ho and called for a boycott by judges of hiring Stanford students as law clerks (actually Ho said on Friday that he and Judge Branch would boycott Stanford students despite the apology from the Dean). I also suspect either Judge Duncan or Judge Ho will be the opening act at next year's Federalist Society National Convention, and I would expect a few Pryorish remarks from either one about the Stanford students.

Justin Walker was 37 years old when his mentor Mitch McConnell got him nominated to be a federal district court judge despite no trial experience. What Walker had was lots of ties to important conservative groups, including the Federalist Society. Walker's lack of trial experience ended up not being a huge problem as less than a year later he was nominated to and confirmed as a judge for the United States Court of Appeals for the District of Columbia Circuit.

In his brief time as a district court judge, Walker made a name for himself by writing an opinion in a case involving COVID restrictions and prayers on Easter Sunday that "reads less like a judicial decision and more like a screed against Democrats published in an outlet like Breitbart." The first seven pages of the opinion are a rant about Christians and other religious groups being the subject of religious persecution throughout the ages. Among other irrelevancies, Walker quoted de Tocqueville for the proposition that “religion, which among the Americans never directly takes part in the government of society, must be considered as the first of their political institutions; for if it does not give them the taste for liberty, it singularly facilitates use of it.” The proposition that religion "singularly facilitates" liberty, is, of course, highly contestable. Judge Walker also saw fit to name a number of prominent Democrats who long ago belonged to the KKK. No one knows why he would include such irrelevant facts in the opinion.

To make matters worse, it appears Judge Walker never even tried to find out the facts of the case before issuing his opinion. The plaintiff claimed that the mayor had banned drive-by prayer sessions on Easter Sunday but the mayor denied that he had done any such thing and said he tried to contact the Court to say so. In the words of that great lefty Professor Josh Blackmun, if Walker had “held a 15 minute telephonic status conference," meaning if Walker had called the lawyers on both sides of the case and allowed Fischer’s attorneys to explain what was going on, “any doubts about the proposed enforcement could have been resolved.” The plaintiffs' request for a temporary restraining order was made on a Friday and Walker issued his order and opinion the next day without hearing from the city (that is usually okay for the issuance of a temporary restraining order but not when the other side is trying to contact the court).

Walker likely went on this holy crusade in a case where there was probably no case or controversy as a way to, in the words of one observer, "audition" for a higher court. The strategy worked, as Judge Walker was promoted to the court of appeals not long after he issued his ode to religious liberty. The last lines of his opinion in the case speak for themselves: "But for the [plaintiffs], Christ’s sacrifice isn’t about the logic of this world. Nor is their Easter Sunday celebration. The reason they will be there for each other and their Lord is the reason they believe He was and is there for us. For them, for all believers, it isn’t a matter of reason; finally, it’s a matter of love."

And last we get to Judge Matthew Kacsmaryk, the district court judge who hears every civil case filed in the Amarillo division of the U.S. District Court for the Northern District of Texas. Any day now, Judge Kacsmaryk is likely to strike down the FDA's approval of one of two medical abortion drugs. Recently, he denied the federal government's request for a change of venue in one of his cases and dropped an unnecessary and gratuitously mean footnote after citing in the text "an amicus brief filed by a professor with a Twitter account." That brief, was not a brief in the case at hand. The footnote said the following:

"Parenthetically, and mercifully, the great Charles Alan Wright endured the publish or perish pressure as a tenured professor - but did not live long enough to endure the tweet and repeat indignity of the Twittersphere."

Professor Steve Vladeck was the author of that brief and is also the current holder of the Charles Allen Wright Chair at the University of Texas. Steve has written about judge shopping by conservative organizations. The footnote is a cheap shot obviously written to garner social media attention and maybe help Judge Kacsmaryk get a promotion to the court of appeals or higher. Professor Vladeck responded in SLATE:

Judges ought to be above this; that they keep showing us the many ways in which they’re not is a big part of why public faith in the judiciary has been eroding so significantly in recent years—far bigger than the efforts of “a professor with a Twitter account.”

Just so.

What explains all of this judicial misbehavior? Of course, there is not one cause but many. We live in incredibly polarized times, judges have access to social media and regular media that are much more direct than before the internet, and the Federalist Society’s direct incorporation into the GOP make it easier for judges to have an us-against-them attitude. Judges seeking promotions may also play a part.

But there is one more probable reason for this immature name calling and desire for publicity. Justice Scalia is still the most important role model and hero for many Federalist Society judges. Scalia was adept at the media circus often going out to law schools and other locations and quite literally screaming that "the Constitution is Dead, Dead, Dead." And his scathing and often personal dissents raised the temperature of constitutional law disputes across the land. An excellent example is this footnote from his dissent in Obergefell:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

This type of name calling was typical for Scalia. Dean Erwin Chemerinsky has written that:

Scalia has long relied on ridicule. In past years he has dismissed his colleagues’ decisions as “nothing short of ludicrous” and “beyond absurd,” “entirely irrational” and not “pass[ing] the most gullible scrutiny.” He has called them “preposterous” and “so unsupported in reason and so absurd in application [as] unlikely to survive...

If legal professionals...pass around his insults at cocktail parties like Wildean witticisms, they’ll encourage a new generation of peevish, callous scoffers. 

Chemerinsky wrote that essay in 2015. His prediction has turned out to be correct. I can think of no better description for these judges who have acted badly than "peevish, callous scoffers." And that is no way to run a federal judiciary.