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>;