It is a strange world indeed in which we find ourselves. The Department of Justice, once the exemplar for competence and professionalism, now hires lawyers to political posts who do not respect the courts. At a recent hearing before Judge Paula Xinis regarding Kilmar Abrego Garcia, the DOJ attorney sat while speaking to the Judge. It boggles the mind that any lawyer would sit while addressing any judge. But, for a DOJ lawyer to speak on weighty matters to a U.S. District Court judge while remaining seated is unfathomable. Federal court is infamous for requiring lawyers to use the lectern when speaking to the judge, to a witness, to anyone.

Drew Ensign is a political appointee to DOJ. He has replaced Erez Reuveni on the Abrego Garcia case. Reuveni formerly served as the chief Immigration attorney for DOJ. Mr. Reuveni admitted to shortcomings in his case and was fired for it. Now, we get Mr. Ensign – who sits while speaking to a U.S. District Judge. See CNN news report here.

Disrespect

Tired of this constant disrespect for trial judges, the Fourth Circuit court of Appeals has issued a stunning decision regarding the Abrego Garcia case. In a unanimous opinion, the Fourth Circuit rightly expresses concern about the “constant intimations of illegitimacy” cast by U.S. government officials toward Judges. “The Judiciary will lose much from a public perception of its lawlessness and all of its attendant contagions,” warned the Fourth Circuit. The opinion even describes Judge Xinis as a “fine district judge.” It is very rare for a court of appeals to praise a lower court judge. The court of appeals is clearly trying to bolster her status in the eyes of a Department of Justice and government officials who do not respect the judiciary.

Stashed Away

The Fourth Circuit, one of the more conservative courts of appeals in the country, is very concerned about the Abrego Garcia case. The court notes early in the decision:

“It is difficult in some cases to get to the very heart of the matter. But in this case it is not hard at all. The government is asserting its right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order.”

The panel of three judges then notes the government then claims it can do nothing because it no longer has custody of the resident. The court is appalled: “This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”

The court acknowledges that Mr. Abrego Garcia might be a member of the gang, MS-13. But, adds the court, perhaps he is not. In any event, he is entitled to some process before making such a finding. The court recalls the example of Pres. Eisenhower who was also called on to enforce a court decision with which he did not entirely agree. Regarding the Supreme Court decision in Brown v. Board of Education II, Pres. Eisenhower said he would enforce the decision. For a President to do otherwise would invite chaos. The court quoted the late President: “Unless the President did so, anarchy would result.”

The court castigated the Department’s interpretation of the Supreme Court’s order to “facilitate” the return of Mr. Abrego Garcia. The word “facilitate” is an active verb, not passive. Simply agreeing not to oppose the possible return of Mr. Abrego Garcia is not a “felicitation,” said the court.

It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.

These are strong words indeed for a court of appeals, more accustomed to scholarly consideration of weighty, but dry issues. Indeed, for the court to issue a decision within just a couple of weeks is exceedingly unusual. In my last appeal to the Fifth Circuit, it took about a year for the court to issue its decision. The words, actions and lack of respect by U.S. government officials – not to mention its courtroom advocates – will only “facilitate” further drama and strong language from many courts. See the decision in Garcia v. Noem, No. 25-1404 (4th Cir. April 17, 2025) here.