Impeach Judge Gregory: He Has Violated His Oath

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.

Ouch.

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.