Federal judges typically choose their words carefully. They are not prone to exaggeration. This is deliberate. One reason is that it makes their words have more impact, particularly on those rare occasions when they decide it is necessary to slough off the restraints and let loose on a misbehaving litigant or attorney.
That's what a federal judge did Thursday, when he turned his baleful eye on attorneys from the U.S. Justice Department who were litigating the deferred-action immigration case that the Supreme Court will soon decide. The attorneys had lied to the court about when the Department of Homeland Security would begin implementing President Obama's immigration executive order.
U.S. District Judge Andrew Hanen denounced their conduct as "unseemly and unprofessional." Their lies, the judge noted, conned the 26 plaintiff states that were suing to stop the executive action, into "foregoing a request for a temporary restraining order."
Judge Hanen witheringly noted that he did not have the power to disbar the lowlife lawyers, and it is an astounding rebuke that he would mention that possibility. But he did "revoke the pro hac vice status of out-of-state lawyers who act unethically in court," meaning that the attorneys in question will no longer have privileges to practice law before courts in the state of Texas.
He is requiring all DOJ attorneys working in the 26 states participating in the case to take three hours of ethics training each year — presumably to remind them both of what's right and of their colleagues' disgraceful behavior.
It is rare for a federal judge to lay into government attorneys this way. Or, rather, it was before President Obama took office. Now it is a lot more common.
Only a month ago, an appellate court judge in the Sixth Circuit similarly excoriated Justice Department attorneys for unethically dragging out the discovery process in another lawsuit, in which they were defending the Internal Revenue Service. In that case, the judge criticized the lawyers' "studied obstruction," and repeated use of transparently bogus arguments to drag their feet in the lower courts.
Judge Raymond Ketheledge wrote pointedly that "lawyers in the Department of Justice have a long and storied tradition of defending the nation's interests and enforcing its laws ... in a manner worthy of the Department's name. The conduct of the IRS's attorneys in the district court falls outside that tradition."
There is a pattern here. This incidents are characteristic of an administration willing to make any casuistical arguments to push ideological change that benefits their donors but for which they have secured no public approval or democratic legitimacy.
Not long ago, in an effort to assist labor unions, Obama's White House argued before the Supreme Court that it, and not the Senate, has a right to determine when and whether the Senate is in session or in recess. It argued more recently that the "least restrictive means" of pursuing public health goals involved forcing Catholic nuns treating the elderly poor to buy contraceptives and abortifacients. Previously, it had argued that it could bar landowners from either developing their land or appealing EPA restrictions against them by simply not going all the way and issuing an enforcement order.
In each of these cases, Obama's attorneys were slapped with unanimous Supreme Court rulings against them, suggesting in each case that the arguments they made were not strong enough to rise to the level of being controversial, but were unambiguously dishonest or unreasonable. As unreasonable, perhaps, as the idea that the federal government has a role in dictating bathroom policies for every state and locality in America.
Maybe it isn't so surprising that Justice Department attorneys keep getting caught misbehaving when their boss, the president himself, puts undemocratic change ahead of everything else, including apparently ethical behavior in the practice of law.