Attorney General Todd Blanche’s Justice Department undermined its own misconduct complaint against a slew of outspoken federal judges, legal experts argued.
The critique came in a Saturday editorial published by The Contrarian and co-written by lawyer and publisher Norm Eisen, retired U.S. District Judge Nancy Gertner, University of Minnesota law professor Richard Painter, and lawyer and legal scholar Matthew Seligman.
On Wednesday, Blanche filed a judicial misconduct complaint targeting almost every active federal judge in Minnesota after several of them spoke publicly about the strain an immigration enforcement surge put on their courthouse last winter. The authors noted that during that period, federal officials repeatedly ignored court orders and judges received threats.
“The complaint is meritless,” the authors wrote. “Worse, it is an attack on the independence of the federal judiciary at a moment when that independence is under extraordinary pressure.”
Blanche’s chief target is Judge Patrick Schiltz, a Bush appointee and former clerk for the late Justice Antonin Scalia, who recently stepped down as the district’s chief judge. Schiltz told The New York Times last month that the situation in Minnesota posed a serious danger to the rule of law.
“This is a flagrant violation in the department’s view of the Code of Judicial Conduct,” Blanche told reporters.
Blanche claims the judges broke the federal judicial code of conduct by commenting publicly. The authors countered that the relevant rule only bars judges from weighing in on the merits of pending cases, which they said Schiltz specifically avoided doing. Blanche’s reading “badly distorts the ethical rules governing federal judges,” they wrote.
The authors also argued the complaint works against itself, since much of it focuses on rulings the judges issued rather than anything they told the Times. They wrote that the filing “inadvertently reveals the weakness of its ethics argument.”
The DOJ has asked that Schiltz and Judge John Tunheim be pulled from all cases involving the Department of Homeland Security.
“A litigant unhappy with a court’s rulings is trying to pick its own judges,” the authors wrote. “That should alarm anyone who cares about judicial independence.”
They pointed out that the judiciary’s own ethics committee advised in February that judges may speak up in defense of the rule of law and judicial independence, including against threats to defy court orders.
“The canons of judicial ethics exist to protect an independent and impartial judiciary,” the authors wrote. “They cannot be transformed into a muzzle that prevents judges from defending judicial independence when it is under attack.”
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