Judicial Activism Reaches Unprecedented, Dangerous Heights
A group of 13 conservative judges say pro-Palestinian protesters at Columbia University violated the law, lack First Amendment protection, and vow not to hire future Columbia graduates.
Federal judges don’t typically weigh in on controversial issues because these issues have a way of ending up in the federal courts. They don’t want to be seen as having pre-judged the issue.
Also, the U.S. Code of Conduct for Federal Judges clearly states judges must refrain from most political activity, including extra-judicial activities that “interfere with the performance of the judge’s official duties” and “reflect adversely on the judge’s impartiality.”
Yet, none of these considerations deterred a group of 13 activist judges, who Monday issued a letter that may be unprecedented.
The judges said pro-Palestinian protesters at Columbia University exceeded the bounds of the First Amendment when they “committed assaults, and destroyed property.” They claimed the protesters are “hateful,” “anti-Semitic,” and made “threats” (presumably to Jewish students).
They blamed Columbia University faculty and administrators for “encouraging the virulent spread of antisemitism and bigotry” on campus and pledged not to hire “anyone who joins the Columbia University community - whether as undergraduates or law students - beginning with the entering class of 2024.”
Pro-Palestinian protests spread to campuses throughout the nation. What if a case ends up on the docket of one of the 13 letter signers?
The letter represent a seemingly gross violation of judicial ethics under the U.S. Code of Judicial Conduct.
A request for comment from the Administrative Office of U.S. Courts (AO) and the Judicial Conference of the United States, which ostensibly oversee the federal courts, went unanswered Tuesday. (Note: the questions posed to AO and Judicial Conference are reprinted below.)
Ringleaders
The letter to University President Minouche Shafik and Law Dean Gillian Lester was spearheaded by appellate judges James C. Ho of the U.S. Court of Appeals for the Fifth Circuit based in New Orleans; Elizabeth L. Branch of the 11th Circuit based in Atlanta; and Matthew H. Solomson, of the U.S. Court of Federal Claims in Washington, D.C. All are appointees of former GOP President Donald Trump.
Judges Ho and Branch last year vowed not to hire Yale and Stanford law school students because of alleged disruption of conservative speech on those campuses.
The letter also states that Columbia’s Manhattan campus has become an “incubator of bigotry” where conservative speech is discouraged. The signatories claim professors and administrators are “encouraging the virulent spread of antisemitism and bigotry” on the campus.
“Freedom of speech protects protests, not trespass, and certainly not acts or threats of violence or terrorism. Speech is not violence, and violence is not speech,” the letter states.
But what is violence? Who determines that? And is it terrorism or antisemitic to show solidarity with the Palestinian people?
The bigger question is - Should federal judges be making judgments without hearing arguments from both sides and considering the facts in the context of the law and precedent.
The letter signers justify the letter by noting that U.S. Supreme Court Justice William Brennan refused to hire law clerks from Harvard Law School because he “disliked criticisms of the Supreme Court by some of its faculty.”
But Justice Brennan, who served on the court from 1956 to 1990, also wouldn’t hire women because, "While I am for equal rights for women, I think my prejudices are still for the male." Brennan, a Catholic Democrat, finally hired a female clerk in 1974 after a male clerk sent him a letter stating his behavior was unconstitutional and “simply wrong.” He didn’t hire another one for seven years.
Two Sides?
It’s an axiom that there are two sides to every story and that’s what makes the judges’ letter problematic. Taxpayers pay federal judges hundreds of thousands of dollars a year in salary, plus incredible perks and benefits, to be impartial. These judges seem to be anything but impartial.
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