Shira Scheindlin, of All Judges, on Trump Defying Courts

Amid an epidemic of liberal hand-wringing over the prospect of a “constitutional crisis,” Politico wonders what might happen “If Trump Defies the Courts,” as a headline today puts it. In that event, Politico suggests, “Here’s What a Judge Can Do.” It goes on to offer insights from a federal judge on handling a hypothetical defiance. Yet of all the Article III jurists Politico could have consulted on this head, whose idea was it to interview Judge Shira Scheindlin?It’s not our intention here to endorse the practice of defying a federal court order. These columns marked that point when President Biden, despite an adverse ruling by the Supreme Court on his student loan amnesty scheme, announced that “today’s decision has closed one path,” so “now we’re going to pursue another.” When the Nine ruled against Mr. Biden on affirmative action, he retorted, “this is not a normal court” — and pursued workarounds.At the time there was scant outrage in the liberal press over Mr. Biden’s defiance of the Supreme Court. Nor was there much consternation when Democratic states like New York sought to reimpose the kinds of unconstitutional limits on gun ownership that the Supreme Court struck down in its landmark Bruen ruling. Now, though, with a Republican in the White House, Politico reckons “a once-unthinkable question is harder to shrug off.”That is, will the Trump White House “deliberately defy federal judges if it doesn’t get what it wants?” Mr. Trump says he won’t. Yet when the question came to a head, under Judge James Boasberg, in a case involving deported Venezuelan nationals, feature what happened. The judge, in Politico’s telling, ordered Mr. Trump “to turn the planes around carrying the deportees.” Yet “that did not happen,” Politico reports.“The administration,” Politico reports, “claims it did not deliberately defy the judge.” Judge Boasberg fumes that Mr. Trump’s Justice Department has “evaded its obligations.” A hearing is set for Friday. Meantime, Politico turns for advice to Judge Scheindlin, who moots the prospect of holding in contempt White House officials and even muses that “you need the person taken away by the U.S. Marshal.”Judge Scheindlin is one to talk, let us just say. The most important case she ever heard — the stop question and frisk case — was taken away from her by riders of the Second Circuit because “a reasonable observer could question the impartiality of the judge.” This was in part because she had encouraged plaintiffs to revive an old case over which she had presided. It was seen as an attempt by the judge to keep the matter in her bailiwick.That demarche, the Circuit riders reckoned, “ran afoul” of the code of conduct for judges. The judge was also scored for giving interviews to the press while the case was pending. The riders took the extraordinary step of removing Judge Scheindlin from the case sua sponte, meaning on the court’s own motion. She didn’t take that lying down. In what the riders called an unprecedented move, she asked the court to reverse the removal order. The Times endorsed her request, but the riders demurred.Which brings us back to today’s tumult over adherence to federal court orders. The question at top of mind, for Politico, is whether Judge Scheindlin envisions “a situation where the government explicitly and outright defies a court order?” Her reply: “I am concerned about that.” The “constitutional crisis will occur,” she reckons, “when the executive branch says to the judicial branch, ‘Too bad, I don’t have to listen to you.’” Yet how would Judge Scheindlin characterize her own effort, cheered by the Times, to defy the Second Circuit’s riders when they took her off the stop-question-and-frisk case? To be sure, she did in the end yield, but only after putting up a fight. And while Judge Scheindlin’s and Mr. Trump’s cases are not directly comparable, an argument can be made for letting the president’s dispute play out in the courts, like the judge’s, before jumping to alarmist conclusions.

Shira Scheindlin, of All Judges, on Trump Defying Courts

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