As the Trump administration prepares to wrongfully deport Kilmar Abrego Garcia for the second time after apparently realizing they had no real case against him in court, the Maryland resident, unlike last time, was not whisked away to foreign shores before he had a chance to challenge the effort. Judge Paula Xinis reminded the administration that it was “absolutely forbidden” from removing Abrego Garcia until she could hold a hearing.
The federal judges in Maryland have, for their part, issued a standing order requiring that all potential deportations must wait at least 48 hours to give the courts an opportunity to hear a habeas petition from a potential deportee. Given the administration already attempted to secretly fly people out of the country and use international waters as an attempt to skirt jurisdiction, the Maryland judges felt it prudent to impose a two-day period to get ahead of a matter before the petitioner wakes up in a bathtub in Uganda with note from Kristi Noem explaining that she’s keeping their kidney.
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In a normal world, this would be the sort of de minimus restriction that the administration would take in stride. In this world, Trump sued all the federal judges in Maryland explaining that Article II should allow him to deport anyone he decides should qualify for deportation without review. Since every judge was a defendant, the case was moved to Virginia and assigned to Trump-appointed judge Thomas Cullen.
Cullen dismissed the case, offering a rebuke of the administration along the way:
Indeed, over the past several months, principal officers of the Executive (and their spokespersons) have described federal district judges across the country as “left-wing,” “liberal,” “activists,” “radical,” “politically minded,” “rogue,” “unhinged,” “outrageous, overzealous, [and] unconstitutional,” “[c]rooked,” and worse. Although some tension between the coordinate branches of government is a hallmark of our constitutional system, this concerted effort by the Executive to smear and impugn individual judges who rule against it is both unprecedented and unfortunate.
Since the judge’s name is Cullen, let’s talk about vampires for a bit. Not the sparkly Twilight kind, but the old school variety. Count Dracula needed permission to enter a house. Likewise, Republicans yearn for permission to wallow in their own crapulence. It’s not strictly necessary, conservatives are willing to embark on unconstitutional power grabs sua sponte, but if they had their druthers, they want to be able to trace every excess back — however disingenuously — to something they can blame on Democrats. Make an offhand comment in the early 90s about not confirming a justice during an election year… hold open a seat for a whole year. Explain that this was never a real policy and it’s a bullshit excuse… confirm a justice a week before the election. Pack key geographic areas with hack, unqualified appointees and embark on a nakedly political effort to legislate through the courts until liberals call it out… then call impeccably qualified “liberal” judges illegitimate.
Professional niceties have obscured judicial abuses for years, so you won’t catch a lot of people — least of all me — crying over judges being called “rogue” or “unconstitutional.” But those epithets need to be supported by the record. It’s one thing to call a specific judge “radical” for using an imaginary, astroturfed plaintiff to overturn FDA drug safety decisions from Amarillo and another to say it’s radical for a whole district worth of judges to set themselves 2 business days to appropriately calendar a hearing. You’ve got to show your receipts if you want to throw around burns like that.
Let’s call it the Kendrick Doctrine.
Cullen is right that this recent run is unprecedented, but it’s a disservice to reduce it to a critique of name-calling. The problem isn’t the names, but that the administration can’t back up its tone with hard facts. That’s a pretty important line to draw. Relatedly, the issue is “smear[ing] and impugn[ing] individual judges who rule against it,” because insulting individual judges as individuals that implies a level of specific, focused criticism. It’s that the Trump administration rhetoric is never meant to be limited to a singular judge. Any individual judge they put on blast is impliedly a stand-in for a broader conspiracy. Matthew Kacsmaryk is an “activist” because before the bench his job was literally “lawyer for an activist group.” When Trump uses the term it’s a placeholder for a generic category of judges that should be presumptively distrusted until and unless they rule in Trump’s favor.
In any event, Cullen offered the Trump administration a lifeline:
Fair enough, as far as it goes. If these arguments were made in the proper forum, they might well get some traction. And under normal circumstances, it would not be surprising if the Executive raised these concerns through the channels Congress prescribed—that is, by challenging the orders as applied to a particular habeas proceeding through a direct appeal to the Fourth Circuit or, as expressly authorized by federal statute, by petitioning the Judicial Council of the Fourth Circuit, which has the authority to rescind or modify local court rules.See 28 U.S.C. §§ 2071(c), 332(d)(4).
In other words, if the administration wants to argue that the judges have to issue a new stay every time they receive a new habeas petition, they can go to the appellate court and try their luck with that… in an appropriate case. But what they can’t do is lodge a free-standing complaint against ALL THE JUDGES complaining about a standing order like a sovereign citizen microdosing ketamine.
But as events over the past several months have revealed, these are not normal times—at least regarding the interplay between the Executive and this coordinate branch of government. It’s no surprise that the Executive chose a different, and more confrontational, path entirely. Instead of appealing any one of the affected habeas cases or filing a rules challenge with the Judicial Council, the Executive decided to sue—and in a big way.
It’s the vacuity of it all. The insults aren’t rhetorical flare for these people, they’re an end to themselves. Another bit of the tacky, gold-plated trim around empty spectacle. Trump sued “all the judges” because it gave him a few days of free headlines to rant about judges and bolster his overarching claim that judges who rule for him are good and those that rule against him are bad — regardless of the merits. It was never a serious response, because these are not serious people.
Which is all to say that Judge Cullen probably would prefer that we not focus on his status as a Trump nominee, but to hide that would let the White House get away with it. This isn’t a left-wing, liberal, activist, radical. He cannot and should not be looped into the generic broadside against judges just because he honors the rule of law.
Earlier: Trump Administration Goes Full Sovereign Citizen And Sues ALL THE JUDGES!
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.