Lawfare Is Wrong, And Submitting Complaints About Judges Because Of Hurt Feelings Is Wrong Too

 

 

Judge Reyes is a judge on the United States District Court for the District of Columbia. Apparently, Reyes is human and makes mistakes, and from time to time, she says odd things while on the bench. Apparently, some lawyers feel wounded by her hurty words. Indeed, the U.S. Department of Justice has filed a complaint with the circuit’s Chief Judge. For background to this imbroglio, see: Josh Blackman, Did Judge Reyes Impose An Unconstitutional Religious Test?, Volokh Conspiracy (Feb. 23, 2025, 9:16 PM), <https://reason.com/volokh/2025/02/23/did-judge-reyes-impose-an-unconstitutional-religious-test/>.

Apparently, Reyes threatened to sanction Seth Waxman, a former Solicitor General, in regard to his representation of clients seeking relief against Trump’s orders removing several inspectors general. In separate litigation, Reyes had some questions directed towards a DOJ attorney who was defending Trump’s Executive Order involving persons in the military with gender dysphoria. Apparently, Reyes framed questions in terms of “What do you think Jesus would say” and “WTF.”

I think Reyes’ “WWJD” query is rather tepid. It could have been understood in the Judge’s mind, in the attorneys’ minds, and in the public mind in a number of different ways. I really doubt that the attorney in the courtroom struggled with this query. All the attorney had to say: “That’s a question our office had not been asked before, has not been addressed by this or other federal courts, and we think our attempting to answer would not accord with the interests of justice and with the example set by higher courts.”

I don’t think Reyes’ “WWJD” query is a First Amendment violation, much less a Religious Test Clause violation. Reyes made some people feel uncomfortable. Big deal: all questions do that. That is what they are supposed to do. Here the subject merely implicates religion. When we can, without giving up our principles and genuinely held beliefs, we should assume good faith and regularity by others, including federal judges appointed by the “other” party. When we can, without giving up our principles and genuinely held beliefs, we should make efforts to lower the political and judicial temperature. We should not engineer or suggest constitutional, judicial, or (other) ethical violations when there are none. The latter is just lawfare.

As to Reyes’ saying “WTF”—this is a trial court judge. Having clerked for one trial court judge who was known for being “hot” and fair while on the bench, I would think this is (again) too tepid to warrant a complaint to the circuit’s Chief Judge. Given that Reyes pressed Waxman (as a private attorney representing left-of-center clients) in strong terms, one might conclude that Reyes treats all alike—which is another reason to ignore (as a disciplinary matter), this judge’s harsh words directed at the Department of Justice attorney.

Finally, when a judge speaks his or her mind, that is transparency and a good thing. I have continually said much the same about Trump. The alternative is far worse. The alternative is that only the dim-witted and the slow-moving and the secretive will be on the bench. Having said all that, I will add that some judges’ conduct is wrongful, and that it is quite proper for aggrieved persons to use the several available processes to seek relief against actual judicial misconduct. I do not see any actual misconduct here.

 

Seth Barrett Tillman, Lawfare Is Wrong, And Submitting Complaints About Judges Because Of Hurt Feelings Is Wrong Too, New Reform Club (Feb. 24, 2025, 3:03 AM), <https://reformclub.blogspot.com/2025/02/lawfare-is-wrong-and-submitting.html>;

Are You Now Or Have You Ever Been A Federal Prosecutor?: A Response to Professor David G. Post

 

You can find Professor David G. Post’s Volokh Conspiracy post here: <https://reason.com/volokh/2025/02/17/more-on-the-outrageous-eric-adams-deal/>. Professor Post is critical of a prior blog post by Professor Josh Blackman for relying on a Tillman-authored 2022 article on Lawfare. Apparently, in his unaltered post, Professor Post characterized me as a “former prosecutor.” But I am not a current or former prosecutor. When his (Professor Post’s) error in reporting my biographical information was brought to his attention, Professor Post made a correction. Professor Post added that my (Tillman’s) not having been a prosecutor weakens the argument which I had put forward in my 2022 Lawfare article. Indeed, he affirms (in the comments above) that Professor Blackman’s reliance on my 2022 Lawfare article makes Blackman’s “argument . . . even more ridiculous” as I am “just a law prof[essor].”

As far as I know, Professor Post (like me) has never been a “former prosecutor.” On his publications, he lists his academic title: “Professor.” Oddly, Professor Post does not consider whether his not having been a former prosecutor weakens his argument. Why is that? 

Are standards only for people you disagree with? 

My own view is that whether or not, he (Professor Post) or I have been prosecutors, our arguments should be primarily judged on their merits. My article (unlike his Volokh Conspiracy post) was intensively reviewed by editors at Lawfare—many (if not most) of whom are former federal prosecutors. And Lawfare is hardly a playground for right-of-center voices, right? And my article has been cited and linked to. Has Professor Post’s Volokh Conspiracy post been cited?

For those of you who would like to review my 2022 Lawfare article, see Seth Barrett Tillman, Not a Panacea: Trump Disqualification and Plea Bargains, Lawfare: Hard National Security Choices (Sept. 20, 2022, 8:31 AM), <https://www.lawfaremedia.org/article/not-panacea-trump-disqualification-and-plea-bargains>, <http://ssrn.com/abstract=4194941>. 

Seth Barrett Tillman, Are You Now Or Have You Ever Been A Federal Prosecutor?: A Response to Professor David G. Post, New Reform Club (Feb. 19, 2025, 9:27 AM), <https://reformclub.blogspot.com/2025/02/are-you-now-or-have-you-ever-been.html>; 

I was promised a left-wing litigation Gotterdamerung ... and all I got was this lousy shirt

 

I had thought that shortly before, or on January 20, 2025—inauguration day, or within a short time thereafter, Democratic Party affiliated [i] progressive academics, [ii] think tanks, [iii] litigation shops, [iv] state attorneys general, and [v] other office holders . . . would bring lawsuits against Trump based on the Foreign Emoluments Clause and the Presidential (Domestic) Emoluments Clause.

It has been two weeks since Trump-47’s inauguration, and, as far as I know, not one such lawsuit has been filed.

I am surprised.

Moreover, I do not know why the President’s many well-resourced opponents have not gone down this path. After all, during Trump-45 they covered themselves with self-praise which a fawning media regularly regurgitated—even when they had very little substantive to show.

I could speculate on why we see the current inaction. And maybe one day, I will return to that issue and to speculate.

But right now, I think the bigger story is that the national press is not pressing these groups (i.e., the parties which had brought the Emoluments Clauses cases during Trump-45) for any rationale explaining their current inaction. And that tells you something about where our media is.

Seth Barrett Tillman, ‘I was promised a left-wing litigation Gotterdamerung ... and all I got was this lousy shirt,’ New Reform Club (Feb. 3, 2025, 2:44 AM), <https://reformclub.blogspot.com/2025/02/i-was-promised-left-wing-litigation.html>;