Cue the world’s tiniest violin for the new leadership at the Department of Justice. Government lawyers have made a public show of threatening legislators for calling Elon Musk a dick and hemorrhaging senior attorneys who refuse to engage in unethical conduct, but they haven’t so much “successfully argued in court” lately.
And it seems all the losing has taken a toll because the Department just lodged its Petition To Stop Hurting Our Feelings with the D.C. Circuit after Judge Ana Reyes took a DOJ lawyer to the woodshed for the government’s slipshod defense of its effort to ban transgender service members.
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“The transcript reveals multiple instances where Judge Reyes’ misconduct compromised the dignity of the proceedings and demonstrated potential bias, raising serious concerns about her ability to preside impartially in this matter,” unironically wrote DOJ chief of staff Chad Mizelle about a proceeding where the government attacked the dignity of Americans serving their country in an effort to institutionalize gender bias.
Last week, the DOJ appeared before Judge Reyes seeking to protect a Trump executive order banning transgender service members. Or, to be more precise, seeking to avoid the fact that this amounts to illegal discrimination by claiming transgender people are by definition dishonorable, liars, and undisciplined in violation of the armed services honor code. Judge Reyes challenged this as impermissible pretext, becoming increasingly exasperated by DOJ Jason Lynch’s evasiveness.
Generally speaking, judges shouldn’t lord their position over counsel. That said, judges aren’t obligated to sit idly by while unprepared lawyers waste their time. Mizelle requests to speak with the manager — in this case, Chief Judge Sri Srinivasan — arguing that Judge Reyes fell on the wrong side of this line:
After a long screed about how she believes President Trump has discriminated against individuals with gender dysphoria (including a claim that he was “literally erasing transgender people”), Judge Reyes describes receiving an email suggesting that she develop a relationship with Jesus. She then uses this aside as an excuse to randomly pivot to questioning the DOJ attorney about his religious views: “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.?” This line of questioning is deeply problematic for several reasons. First, the question has no relevance to the legal analysis of military policy.
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Asking the government about Jesus would be inappropriate except TRUMP EXPLICITLY SAID the purpose of his policies toward transgender folks is to protect Christians against affirming “radical transgender ideology against their faith.” Trump avoided that language in this executive order, but it’s all over the rest of his work on this subject. Given that the DOJ styles itself as Trump’s personal lawyers, it seems quite relevant to probe how this policy relates to the government’s take on Jesus. If Jesus might not object, how can this amount to blanket anti-Christian bias? That’s not a wild line of inquiry for the judge.
Second, it placed DOJ counsel in an untenable position of either appearing unresponsive or speculating about how an incoherent hypothetical aligns with Judge Reyes’ personal religious beliefs. Counsel, however, did not fall
into that trap, but instead provided a professional response that highlights the impropriety of the question itself: “The United States is not going to speculate about what Jesus would have to say about anything.”
Yeah, Trump did that already. To borrow from a different exchange between Judge Reyes and Lynch at the same hearing: “It’s not like I randomly picked you off the street. You’re the government’s representative here.”
Third, sporadic use of the inappropriate abbreviation “WTF” during the questioning of an attorney on his religious beliefs sheds light on the severity of the judge’s lack of professional decorum.
LOL. The DOJ’s Victorian fainting couch suffered a WORKOUT last week.
Unfortunately, Judge Reyes’ misconduct was not isolated to a single incident. The transcript also reveals that Judge Reyes attempted to embarrass counsel by physically directing him as part of a rhetorical exercise in front of other attorneys, court personnel, and members of the public and press. During an exchange about discrimination, Judge Reyes abruptly instructs DOJ counsel: “I made a change to my standing order when I was in the back. My new standing order says that no one who has graduated from UVA Law School can appear before me. So, I need you to sit down, please. I need you to sit down.” When counsel complied with this directive, the judge continued her hypothetical about UVA law graduates being banned from her courtroom because “they’re all liars and lack integrity.” Only after Judge Reyes used counsel as a physical prop did she instruct him to come back up to continue the proceedings. This directive served no legitimate judicial purpose and transformed an attorney appearing before the court into an unwilling participant in
the judge’s unnecessary demonstration.
It will shock you not at all to learn that this is bullshit. Judge Reyes embarked on this demonstration after asking Lynch to explain how this policy — based solely in attacking the integrity of transgender service members — isn’t a showing of animus.
LYNCH: Not in any constitutional —
JUDGE REYES: In a commonsense way. This is a policy from the President of the United States affecting thousands of people … to call an entire group of people, lying dishonest people who are undisciplined, immodest and have no integrity. How is that anything other than showing animus?
LYNCH: I don’t have an answer for you.
JUDGE REYES: You do have an answer, you just don’t want to give it… People can make solid arguments as to why some or even most transgender people shouldn’t be in the military … We’re dealing with unadulterated animus. We are dealing with the president of the United States dealing with a group of people serving their country … calling them liars.
Judge Reyes conducted the UVA demonstration because Lynch claimed — even if the judge suspected disingenuously — to not be able to comprehend what “animus” means. The demonstration shouldn’t have been necessary, but since the DOJ decided to pretend they were born yesterday, the judge indulged.
An independent, impartial judiciary is fundamental to our system of justice. When judges demonstrate apparent bias or treat counsel disrespectfully, public confidence in the judicial system is undermined. The issues documented here transcend the specific case and parties involved and speak to core principles of the judiciary that must be upheld.
For lawyers committed to champion a particularly toxic brand of cis-hetero patriarchy… how do they justify being such crybabies?
(Letter on the next page…)
Justice Department files complaint against judge weighing challenge to Trump’s transgender troop ban [AP]
Earlier: Judge Obliterates DOJ Lawyer At Transgender Ban Hearing
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.