Judge Ana Reyes (DDC) may be having some issues right now. On Valentine’s Day, in a case concerning fired inspectors general, she threatened to sanction former Solicitor General Seth Waxman.
“Mr. Waxman, I am really debating right now whether to order a show cause on sanctions,” Judge Reyes said right before the call ended. “I’m not going to do it, because I’ve got other things to deal with, but this was totally unacceptable.” . . .
“You are an experienced, experienced individual,” she said of Mr. Waxman, adding that “there is no universe in which I would ever be qualified enough to be hired by the solicitor general’s office, much less be the solicitor general.” . . .
“Why on Earth did you not have this figured out with the defendants, before coming here and burdening me and burdening my staff on this issue? Are we really here right now on the sixth hearing of this day for me to decide whether to grant a TRO, given the circumstances that you guys could not even bother filing a TRO for 21 days?”
Four days later, Judge Reyes held another hearing about President Trump’s executive order in gender dysphoria in the military.
This is an actual question Judge Reyes asked a DOJ lawyer:
What do you think Jesus would say to telling a group of people that they are so worthless, so worthless that we’re not going to allow them into homeless shelters? Do you think Jesus would be, ‘Sounds right to me’? Or do you think Jesus would say, WTF? Of course let them in.
WTF, for those who may not know, stands for “What the fuck?” How far we have come from Cohen v. California. A person wearing a jacket that said Fuck the Draft, to protest bombs being dropped in Vietnam, was arrested. Now, a judge is dropping f-bombs from the bench.
DOJ has submitted a complaint to Chief Judge Srinivasan concerning Judge Reyes’s conduct.
I hope Judge Reyes is doing well. This sort of conduct is extremely troubling. Maybe she should be given the Pauline Newman treatment, and not receive any further cases until she undergoes mental screening? Call it an “administrative stay” of her Article III commission. Apparently, you can administratively stay anything!
Apart from the ethical issues, I wonder whether Judge Reyes may have inadvertently tripped across a seldom-mentioned provision of the Constitution. The Religious Test Clause provides:
but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
Torcaso v. Watkins (1961), more-or-less held that that Religious Test Clause is coextensive with the Free Exercise Clause. Yet, the Religious Test Clause remains part of the Constitution. (I’ll table for now whether the DOJ lawyer would fall within the ambit of the phrase “Office or public Trust under the United States”; I am not certain what kind of position he holds.)
Traditionally, we think of a religious test as a government official having to pledge a belief in a particular faith, or to a deity more generally. For example, Seth Barrett Tillman has written about the Religious Test Clause in the North Carolina Constitution of 1776. It provided:
That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.
What about Judge Reyes’s question? Asking a government lawyer “What would Jesus do” is a purely theological question. It is, in every sense, a test about religious belief. And the question is premised on the existence of Jesus as a deity. Does the lawyer have to take a position on that question? I do not know what the lawyer’s religion is, if any at all. As a Jew, I would certainly have struggled with that question. If Judge Matt Kacsmaryk asked a government lawyer “What would Jesus do?”, articles of impeachment would already have been filed.
Ultimately, I do not think Judge Reyes actually cared what Jesus thought. She was making a rhetorical point that a conservative administration, which purports promotes morality, was being hypocritical by not helping certain people. This same rhetorical trap is used whenever a conservative favors restrictive immigration policies. There is no there, there.
In any event, I hope Judge Reyes is well. Her conduct here is cause for concern.
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