Willingness to abide the rule of law

Our willingness to abide the rule of law is enduring and routine.  This is a simple observation and concept, but it is so much more.  It speaks to our respect for judges and the law.  It is why the Supreme Court’s Plessy v. Ferguson (“separate but equal”) approval of segregation could endure as a stain of de jure racism for almost 100 years, could be blown up by Brown v. Topeka Board of Education, even if integration came with fits and starts.

In the past week, we have seen the power of the judiciary in full flower.  Three (3) wildly different cases, with rulings having wildly different cheerleaders, coming from different parts of the country.  And, the fact that they could do so and we keep motoring along is what truly makes us truly great.

The Honorable Reed O’Connor is a Federal District Judge in the Northern District of Texas.  He is a conservative darling and the State of Texas’ “go to judge” for all things fighting Washington.  Essentially, when Texas wants to file a lawsuit to tweak the United States Government, its Attorney General files it in the Northern District of Texas, Wichita Falls or Fort Worth Divisions.  There, if the case is assigned to Judge O’Connor, there is much joy. 

Smart litigators seek out the most favorable forum to bring a lawsuit.  The way the Northern District is constructed, there is a much better than a 50/50 chance Judge O’Connor will be assigned a lawsuit filed in Wichita Falls or Fort Worth.  He used to be the only judge sitting in Wichita Falls.  There, the State of Texas filed five (5) lawsuits and all were, therefore, assigned to him.  In Fort Worth, while there are two (2) other judges, they are “senior judges” only handling a small case load.

Texas likes Judge O’Connor’s courtroom.  In less than four (4) years, he struck down the Indian Child Welfare Act (giving preference to Native American families in the placement of Native American children), an Obama Administration rule protecting transgender citizens in their employment, and awarded Texas $300 million in fee fight associated with the Affordable Care Act (“Obamacare” or “ACA”).  So, there must have been much cheering when a multi-state (20 states joined Texas) attempt to undo the entirety of the ACA landed with Judge O’Connor.

Essentially, the argument presented is that the ACA is now unconstitutional, because the Republican Congress eliminated the “tax” penalty associated with the “individual mandate,” i.e., by doing so, Republicans invalidated one part of the ACA, which necessarily invalidate its entirety.  Judge O’Connor bought this argument.  Until there is a contrary opinion, a single District Court Judge, selected because of his political views, and has done what Republicans have been trying to (unsuccessfully) torch for years.  Yet, the law still exists, the world has not ended, and we live fine with the consequences.

At just about the other end of the country, in the Washington, D.C. District Court, we find the Honorable Emmett G. Sullivan.  Understand, Judge Sullivan is no “partisan.”  He is the first (and only) judge to ever having been nominated to the Federal bench by three (3) consecutive Presidents (Reagan, George H.W. Bush, and Clinton) – two Republicans and a Democrat.  He is in the spotlight because of two (2) cases.

The first is the sentencing of Lt. Gen. Michael Flynn, President Trump’s former National Security Advisor and campaign buddy.  In an extraordinary scene, Judge Sullivan museg about treason, warned Gen. Flynn he might want to rethink the his guilty plea and/or being sentenced, and expressed his “disgust, my disdain” for Gen. Flynn’s behavior lying to the FBI in the White House.  Judge Sullivan chastised Gen. Flynn for “selling us out” to Turkey during the 2016 Presidential Election for a $600,000.00 (or more) lobbying contract and lying about it.

What appears to have particularly galled Judge Sullivan is the sentencing memorandum filed by Gen. Flynn’s attorneys suggesting that the FBI had duped or trapped him into lying.  This is a trope floated by President Trump’s supporters of an out of control FBI manipulating people into committing crimes.  Judge Sullivan (who has a reputation for often challenging prosecutors) took exception to this defense pleading, walked Gen. Flynn through each allegation in the sentencing memo, and made him disavow the dark suggestions in it.

Oh boy!  But, this is what judges sometimes do, call foul when spurious attacks are made on our justice system and law enforcement community.  In the end, Gen. Flynn made the wise decision to continue his sentencing, at the stern urging of Judge Sullivan, regroup, and hope to find Judge Sullivan in a better mood.

In a remarkable one-two punch, Judge Sullivan also released an opinion overturning President Trump’s administrative policy to limit the ability of refugees to claim asylum from gang and domestic violence.  Congress permits peopling fleeing horrible conditions in their country of origin to come to our borders (or even after illegal entry) and ask for asylum.  Then-Attorney General Jeff Sessions administratively decided that the Trump Administration would no longer permit such claims.  This is at the heart of the disagreement about what to do with string of asylum seekers streaming for the “Northern Triangle” of Central America.

Judge Sullivan has stopped this in its tracks.  He found that Congress passed a law permitting such asylum applications and the Trump Administration has to permit them.  A conflict as to which branch of government sets these rules has been resolved in favor of law over administrative policy.

In all of these cases, we find judges doing what we pay them to do – umpires calling balls and strikes about what the players may legally do.  We accept mistakes, even politically motivated outlier ones, because we trust the system our Founding Fathers designated.  In this season of charity and family, we are reminded the true meaning of our American identity lies in our rule of law and respect we have for it.  Merry Christmas everyone!

 

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to jim@rockefellerlawcenter.com.