Where Is The Check On The Excesses Of the Judiciary?
There is now overwhelming evidence that Democratic nominated U.S. judges are conducting a pseudo coup to thwart the Trump administration. Does anyone in a judicial leadership role care?
U.S. Supreme Chief Justice John Roberts said this week that the role of the judiciary is to “obviously decide cases, but in the course of that check the excesses of Congress or the executive.”
But who checks the “excesses” of the judiciary?
Each of the three branches of American government is supposed to check the other, but the GOP-controlled U.S. Congress has done little to address the conflict between the executive and judicial branches.
Meanwhile, the judicial branch is in complete denial that Democratic nominated judges are enacting a pseudo coup to thwart GOP President Donald J. Trump, who was elected by 77 million Americans to address illegal immigration and government waste.
Whether you approve of Trump’s agenda, or not, this should be concerning.
Democratic judges?
Chief Justice Roberts has framed the contest between the Trump administration and the judiciary as one of judicial impartiality, stating that despite all appearances there are no “Obama judges,” only federal judges upholding the law. He says impeachment is not the way to address “disagreements.”
But the evidence shows that there are “Obama Judges” and “Biden Judges” who are blocking Trump’s policies.
This trend was first identified - and apparently completely ignored by judiciary - in a Harvard Law Review article in April 2024.
From 1963 to 2023, there were 127 nationwide injunctions issued by federal court judges, with 92 issued between 2001 and 2023. Of these, 64 were directed against Trump during his first term in office, a 443% increase over the number issued during Democratic President Barack Obama’s term.
Ninety-two percent of the Trump injunctions were issued by judges who were nominated by a Democratic president.
Since Trump began his latest term in office, the trend has continued on steroids.
It is estimated that more than 50 injunctions and temporary restraining orders have been issued against the Trump administration in just four months, and it appears the vast majority were issued by judges nominated by Democrats.
By April 29, 2025, Reuters reported, more than 70 court rulings were issued impeding Trump’s efforts, with more than 200 lawsuits filed.
THE EVIDENCE OF POLITICIZED FEDERAL JUDGES IS NOW OVERWHELMING
Former Attorney General William Barr said in 2019 that federal courts issued only 27 nationwide injunctions in all the 20th century.
The Loci Of Animosity
Furthermore, Trump complains that it is “virtually impossible” for him to get a fair ruling before federal court judges sitting in Washington, D.C. or New York.
In court papers last month, the U.S. Dept. of Justice argued that U.S. District Judge Beryl Howell of Washington, D.C., who was appointed by Democratic Pres. Barack Obama, has demonstrated “animus” and a “pattern of hostility” toward Trump.
Among other things, the DOJ argues, Howell made a speech in 2023 in which she lamented America was at a crossroads toward authoritarianism because of Trump.
U.S. Rep. Elise Stefanik, R-NY, filed a judicial misconduct complaint against Howell. (Good luck with that!)
While Howell was presiding over a lawsuit involving a Washington, D.C. law firm, she accused Trump of “ongoing improper encroachments” of his executive power that reflected a “grave misapprehension of our constitutional order.”
Howell rejected the DOJ’s motion to disqualify her from hearing the lawsuit on the grounds that judicial rulings “almost never constitute a valid basis for a bias or partiality motion.”
Judicial Misconduct
The context of all of this is the judiciary’s long-standing refusal to police itself.
There were 1,510 misconduct complaints filed against approximately 1,500 active federal judges in 2024. All but three were dismissed. The three that led to action resulted in “censures or reprimands.”
A rebuke may distress a judge, but it is a slap on the wrist. It does nothing to rectify the harm suffered by the complainant(s), who may have endured years of abuse in a quest for justice. It does little to deter further abuse by other judges.
Many of the injunctions issued against Trump were dispensed by senior (semi-retired) judges for whom a rebuke is meaningless.
Not a single U.S. judge accused of misconduct by a litigant in 2024 suffered a significant penalty.
There was one internal complaint of misconduct against a Trump appointed judge in 2024 that resulted in a significant penalty. The Judicial Conference referred U.S. District Judge Joshua Kindred of Alaska to the U.S. Congress for impeachment after finding he engaged in an inappropriate sexual relationship with a law clerk and sent crude messages to staff. Kindred immediately resigned.
No independent review
It is not coincidental that none of the judicial misconduct complaints filed by litigants triggered a serious consequence.
The overwhelming majority of misconduct complaints are routinely dismissed by chief circuit judges, who have vested interests in minimizing the perception of scandal in their bailiwick. This kind of “review’’ is vulnerable to bias and contrary to a 2022 report by the Government Accountability Office.
The GAO report concluded “federal judiciary policies… don’t fully align with investigative best practices.” The GAO recommended the judiciary establish an “independent office” to investigate judicial misconduct. The judiciary declined, claiming an independent office would interfere with judicial independence. (No concern was expressed for litigants who are victims of judicial misconduct.)
Shackling an attorney is not misconduct?
Consider the case of a young female attorney in California who was shackled and imprisoned beside a smelly toilet in a jail cell for hours in 2022 because a federal judge didn’t like her attitude. In 2024, Chief Judge Mary H. Murguia of the U.S. Court of Appeals for the Ninth Circuit dismissed a judicial complaint filed by a local legal newspaper against the judge, who also was accused of lying about his actions. She concluded there was insufficient evidence the judge “exceeded his authority” or behaved in an “egregious and hostile manner.”
Some 520 appeals were filed in 2024 contesting the dismissal of judicial misconduct complaints by circuit judges. These appeals were decided by a Judicial Council in the circuit that is led by the chief judge who dismissed the complaint. Every appeal was rejected but one. The parties and process are secret, so one can only guess that the appeal in question involved Judge Kindred of Alaska.
Worst Branch For Integrity?
My interest in judicial misconduct was piqued after I brought an age discrimination lawsuit in 2011 against a federal agency that exclusively advertised five attorney jobs at two institutions with populations under the age of 40.
After Miranda Du, the Chief U.S. District Judge of Nevada, dismissed the case, it was revived by a three-judge panel of the U.S. Circuit Court of Appeals for the Ninth Circuit that said it was “common sense” the agency’s recruitment was discriminatory.
Du dismissed the case a second time, based on “critical” factual evidence that she literally made up, and a second three judge panel affirmed the dismissal based upon Du’s made up evidence. The panel’s dismissal was made in a four-page decision that lacked analysis of the legal issues.
Chief Circuit Judge Murguia dismissed my judicial misconducts complaints against Du and the second panel, which included two Trump nominated judges, Ryan D. Nelson and Lawrence VanDyke and Biden nominated Judge Gabriel P. Sanchez.
My appeal of Judge Murguia’s dismissal has been pending in the Judicial Council of the 9th Circuit (where Judge Murguia is the presiding officer) since December 2024.