Black Robe Fever

Published 5:16 pm Wednesday, May 2, 2018

Lawyers with active practices in the federal system are familiar with “black robe fever.” It’s a virulent disease that strikes some attorneys when they are elevated to the federal bench and don the black robe.

Once the malady takes hold, it often converts a mild-mannered, run-of-the-mill lawyer with political connections into an omniscient tyrant with an oversized ego and imperious attitude. Medical researchers opine that among the causes of the fever is the fact that federal judges’ appointments are for life and they cannot be fired, only impeached by Congress.

Judges in the state systems sometimes come down with a genetic variant of black robe fever. It’s milder than the federal fever, and usually clears up as the state judges approach re-election and have to face the voters to keep their jobs.

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Some federal judges who come down with the fever are ardent political operatives who believe their political beliefs are infallible and far superior to other political views, including those held by the President of the United States.

One of the symptoms of the political strain of the fever is the issuance of a nationwide injunction by U.S. District Court judges, the lowest level of Article III judges, against the enforcement of an executive order issued by the President, which happened several times in 2017.

The U.S. Supreme Court heard oral arguments last Wednesday on President Trump’s temporary travel ban on immigration from five Muslim majority countries which lack the records and systems in place to allow the U.S. Immigration and Customs Enforcement to properly vet those seeking asylum or residency in the U.S.

The President issued his first travel ban order in January of 2017. In March, Trump issued a new temporary travel ban on the same countries after extensive input from his cabinet, DOJ, and other federal agencies.

United States District Court Judge Derrick Kahala Watson for the District of Hawaii was appointed by President Obama in 2013. Judge Watson issued a nationwide injunction against Trump’s revised temporary travel ban.
Judge Watson believes that as a lone federal district judge in Hawaii, his opinion about keeping America safe from terrorists is correct and the President’s is wrong. He believes that as a District Judge in Hawaii, he has the power to enjoin the entire Executive Branch of the U.S. government from fulfilling its duty to protect U.S. citizens.

In matters of national security and terrorism, time is of the essence. BUT it took OVER ONE YEAR in the judicial system to get to oral argument in the U.S. Supreme Court. And there will be more delay. The Supreme Court will not decide until perhaps July.

Is that any way to defend a country against immediate threats?

And speaking of immigration, in 2017, United States District Court Judge William Orrick of San Francisco blocked President Trump’s sanctuary city defunding order. His injunction applied not just to San Francisco and the Northern District of CA, but nationwide.

According to the Daily Caller and other news reports, Orrick was a political bundler who raised $230,000 for President Obama in 2008 and $100,000 for Democratic nominee John Kerry in 2004. Orrick was appointed to the Northern California District Court by Obama in 2013.

It was not an accident that two Democrat activist judges issued these nationwide injunctions. The plaintiffs in these cases forum shop, i.e., file their lawsuit in a friendly jurisdiction where they know the district judge is a political ally.

One federal judge at the lowest level of the federal court system should not be permitted to issue a ruling that extends beyond his federal judicial district. Moreover, injunctive relief should never be a remedy.

We need a new law which makes it clear that a lawsuit against the President involving national policy must be filed only in a special court in D.C. with summary appeal to the Supreme Court.

These two systemic abuses by politically-inspired federal district judges in Hawaii and California are not isolated incidents. Just last week, U.S. district judges in Washington, D.C. and Washington state issued nationwide injunctions against the Trump administration’s withholding of funding from Planned Parenthood.

Michael Henry writes in Oxford and can be reached at