Trump Judge Slams Supreme Court, Says Courts Are 'Not a Denny's'
Judge James Ho, a Trump appointee, slammed the Supreme Court for ruling against Trump and demanding that judges “be available 24 hours a day.”
Last week, the Supreme Court blocked Donald Trump from continuing to use an archaic wartime law to deport Venezuelan migrants without due process, after the administration sent hundreds of people to prison in El Salvador this way.
In a 7-2 decision, the justices vacated a decision by the Fifth Circuit Court of Appeals, with a note that the lower court had taken too long to consider issuing an emergency restraining order to block a group of immigrants’ imminent deportations under the Alien Enemies Act. The majority found that the Trump administration had not given the detainees adequate notice of their removal nor information about how to challenge it, and sent the case back to the appeals court for further proceedings.
Fifth Circuit Judge James Ho — a Trump appointee widely considered a potential favorite for a high court seat should one become available — is not happy about this. He registered his disappointment Tuesday in a concurrence attached to the order where the Fifth Circuit added the case back to its docket, per the Supreme Court’s demand.
It’s a remarkable piece of writing, designed for an audience of one. If there’s any question about that, Ho apologizes directly to Trump several times, suggesting the Supreme Court is treating him unfairly. Ho excoriates the court for expecting judges to “be available 24 hours a day,” even though statute dictates that federal courts are always open for filing motions and orders. He appears to have his mind made up about the petitioners being terrorist gang members, as the administration claims.
“Petitioners, identified as members of Tren de Aragua, a designated foreign terrorist organization, should not be allowed to proceed in this appeal,” Ho writes.
“As an inferior court, we’re duty-bound to follow Supreme Court rulings — whether we agree with them or not. We don’t have to like it. But we have to do it,” he continues. “So I concur in our order today expediting our consideration of this matter, as directed by the Supreme Court. But I write to state my sincere concerns about how the district judge as well as the president and other officials have been treated in this case.”
Ho insists that the Fifth Circuit was right to refuse an emergency appeal in the case, which involves Venezuelan migrants who were reportedly loaded onto buses and prepped for deportation under the Alien Enemies Act, potentially to El Salvador, without fair opportunity to contest their removal. He argues the district court had been asked to comply with a “patently unreasonable timetable” — 42 minutes — to halt the deportations.
As the Supreme Court noted last week, the petitioners first requested a temporary restraining order at 12:34 a.m. on April 18. They then filed at 12:48 p.m. to demand a ruling or conference on that order by 1:30 p.m. The petitioners soon filed emergency appeals with the Fifth Circuit and the Supreme Court, and the high court issued an order after midnight on April 19 temporarily halting the deportations.
In its ruling last week, the Supreme Court found that “the district court’s inaction — not for 42 minutes but for 14 hours and 28 minutes — had the practical effect of refusing an injunction to detainees facing an imminent threat of severe, irreparable harm.”
Ho is apoplectic about this — and not just because he believes the Trump administration should have been afforded 24 hours to respond to the emergency petition seeking to stop its imminent deportation of immigrants out of the country to a Salvadoran prison, or perhaps another deliberately cruel locale. (Trump reportedly just deported Asian immigrants to South Sudan.)
The judge writes that “starting the clock at 12:34 a.m. not only ignores the [district] court’s express instructions respecting the government’s right to respond. It also ignores the fact that the court is starting the clock at — 12:34 a.m.”
“We seem to have forgotten that this is a district court — not a Denny’s,” he continues, referring to the 24/7 diner chain. “This is the first time I’ve ever heard anyone suggest that district judges have a duty to check their dockets at all hours of the night, just in case a party decides to file a motion.”
He adds, “If this is going to become the norm, then we should say so: District judges are hereby expected to be available 24 hours a day — and the Judicial Conference of the United States and the Administrative Office of the U.S. courts should secure from Congress the resources and staffing necessary to ensure 24-hour operations in every district court across the country. If this is not to become the norm, then we should admit that this is special treatment being afforded to certain favored litigants like members of Tren de Aragua — and we should stop pretending that Lady Justice is blindfolded.”
As Patrick Jaicomo, a civil rights litigator at the center-right Institute for Justice notes, besides Ho choosing to offer “prejudicial statements” about the petitioners being gang members, “his complaint about court hours is puzzling in light of 28 USC 452.”
That statute reads: “All courts of the United States shall be deemed always open for the purpose of filing proper papers, issuing and returning process, and making motions and orders.”
Ho apologizes again to Trump.
“The district judge is not the only public official whose treatment in this case warrants comment,” he writes. “Recall why the district court established a 24-hour filing deadline. The court firmly believed that the government should have the right to express its views before any ruling is issued. And rightly so.”
Ho continues, “It should go without saying that the president and his fellow executive branch officials deserve the same respect that courts regularly afford every other litigant — including other presidents and officials.”
He then writes that Barack Obama “tried to shame members of the Supreme Court during a State of the Union address by disparaging a recent ruling” — referring to when Obama said that the court’s 2010 Citizens United ruling “will open the floodgates for special interests… to spend without limit in our elections.” (It did.)
Ho adds that Bill Clinton “was disbarred from practicing law before the Supreme Court,” reportedly in relation to sexual harassment investigations. (Clinton resigned rather than fight disbarment before the Supreme Court.)
“Yet I doubt that any court would deny any of those presidents the right to express their views in any pending case to which they are a party, before issuing any ruling,” Ho concludes. “Our current president deserves the same respect.”
The federal courts aren’t a Denny’s — but Ho, the Fifth Circuit judge, has cooked up a Grand Slam for Trump.
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