Inquiring minds want to know: Can the chief judge of the Fourth Circuit Court of Appeals read?
We know that he can copy down or transcribe words. But reading implies comprehension, which is something else. In Les mots, his autobiography, Jean-Paul Sartre recalls how when he was “seven or eight” he would play at writing. He “invented nothing,” but merely transcribed other people’s stories, altering a name here, a detail there. “This cold-blooded plagiarism,” Sartre recalls, was liberating: “[E]verything was necessarily true because I invented nothing.”
Judge Roger Gregory, of course, is involved in a different literary genre. But reading his majority opinion for International Refugee Assistance Project v. Donald J. Trump, one wonders whether he was not, in effect, taking dictation. Judge Gregory held for the plaintiff, affirming the lower court’s nationwide injunction against Donald Trump’s “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States.” But is there any evidence in that opinion that Judge Gregory read and understood that executive order? He writes that although the EO “speaks with vague words of national security,” “in context” it “drips with religious intolerance, animus, and discrimination.”
But as Judge Paul Niemeyer notes in his vigorous dissent, Trump’s executive order “undisputedly contains no facial reference to religion,” i.e., religion is not mentioned.
Then again, Judge Gregory cites Kleindienst v. Mandel, the 1972 case that, as many commentators have noted, provides the governing precedent for the issue under dispute: whether the president has the authority to bar certain non-citizens from entering the United States. But as Judge Niemeyer also noted, Judge Gregory’s opinion, while it mentions Mandel, in fact “refused to apply” its central finding: that courts must not “look behind … ‘facially legitimate and bona fide’ exercises of executive discretion in the immigration context to discern other possible purposes.” In other words, a court may not adduce things a candidate said on the campaign trail as a reason to vacate a properly formed executive order the candidate issued when president.
The lower court, Niemeyer argued, “seriously erred” in at least three ways:
(1) by refusing to apply the Supreme Court’s decision in Mandel; (2) by fabricating a new proposition of law — indeed, a new rule — that provides for the consideration of campaign statements to recast a later-issued executive order; and (3) by radically extending Supreme Court Establishment Clause precedents. The district court’s approach is not only unprecedented, it is totally unworkable and inappropriate under any standard of analysis.
But how are we to understand Judge Gregory’s incapacity? Two possibilities present themselves. One is simple incompetence. He cannot read.
The other is thoroughgoing partisanship: he cannot judge because parti pris has already determined his conclusion before he considers the evidence.
In either case, he should either resign or be impeached and removed from office.
Every federal judge swears an oath to “administer justice without respect to persons, and do equal right to the poor and to the rich, and … [to] faithfully and impartially discharge and perform all the duties incumbent upon me … under the Constitution and laws of the United States.”
This Judge Gregory has ostentatiously failed to do. The law, it is said, is no respecter of persons. But the fury directed against Trump’s executive order calling for a pause on immigration from certain countries is all about persons, i.e., Donald Trump. As an ACLU lawyer acknowledged, had the very same executive order been issued by Hillary Clinton, it would have been just fine.
Just think about what an abyss such reasoning would open up before us. If the law were to be applied not on the basis of what it said but rather because of the personal preferences of those framing, executing, or adjudicating the law — what then?
Chaos, that’s what. Or, more precisely, the triumph of naked power over the law.
There has been a lot of talk about impeachment since November 9, 2016. A left-leaning fellow in my neighborhood has even taken to wearing a hat with an acronym beginning “IT.” The first word stands for “Impeach.” You know what the second word stands for. (The result of the acronym stands for something unprintable in a family-oriented outlet.)
But if asked what Trump should be impeached for, none of the people baying for his blood can supply a coherent answer. “Russia” won’t wash, and indeed that rationale is deliquescing like the Cheshire Cat before our eyes.
There is a compact but admonitory list of judges who have been impeached since the early days of the republic. Only a small percentage have actually been convicted by the Senate and removed. The reasons for impeachment run the gamut from drunkenness on the bench to bribery, incompetence, and abuse of power.
It is possible that Judge Gregory is merely incompetent. In that case, although he deserves our pity, he should be removed from office quietly and without ostentation.
But I suspect naked partisanship, not incompetence. If that is the case, he deserves our anger and our contempt. For he has violated a most sacred secular trust and should be publicly impeached, convicted by the Senate, and removed from office.