Seeing power abuse by federal judges, 5th Circuit judge warns of 'hundreds of kings in judicial robes'
Judge James C. Ho of the 5th U.S. Circuit Court of Appeals at New Orleans issued a concurrence to his majority opinion in a death-penalty case last week to remark on federal trial judges who, in his view, abuse their powers to overturn the will of the electorate. (Photo from the 5th U.S. Circuit Court of Appeals at New Orleans)
A federal appeals judge issued a concurrence to his majority opinion in a death-penalty case last week to remark on federal trial judges who, in his view, abuse their powers to overturn the will of the electorate.
Judge James C. Ho of the 5th U.S. Circuit Court of Appeals at New Orleans is considered a possible U.S. Supreme Court pick by President Donald Trump, who appointed him to the appeals court.
Bloomberg Law has coverage of his concurrence here and here. How Appealing links to the April 17 opinion.
Ho’s majority opinion was joined by Judge Andrew S. Oldham, who is also a Trump appointee. The decision said a federal trial judge wrongly reopened an Eighth Amendment challenge to lethal injection in Louisiana to consider the constitutionality of nitrogen hypoxia for executions.
The lethal injection challenge was moot because the state was no longer able to obtain lethal injection drugs. The district court “usurped judicial power” when it reopened the moot case, Ho wrote in an opinion directing the district judge to vacate the order reopening the case.
Ho defended his court’s grant of a writ of mandamus, saying the typical appellate process was inadequate “in extraordinary cases like this one.”
Oldham did not join Ho’s concurrence.
“This is not the first time our court has had to step in because a district court abused its powers,” Ho wrote in the concurrence. “If a district judge abuses the legal process in a hurried effort to thwart the lawful political choices of the electorate, appellate courts are well within their right to intervene and grant emergency relief.”
“Our founders didn’t fight a Revolutionary War to replace one king in royal garb with hundreds of kings in judicial robes,” Ho wrote.
Ho said the Supreme Court was willing to step in and grant emergency relief when it lifted a Washington, D.C., federal judge’s temporary restraining order that banned the Trump administration from using the Alien Enemies Act of 1798 to deport alleged gang members. The Supreme Court’s April 7 opinion said the legal challenge should be filed as a habeas action in Texas, the district in which the immigrants were detained.
“The majority understood that waiting for an appeal in the ‘ordinary course’ would inadequately protect the government from the indignity of litigating in the wrong proceeding—not to mention unduly delay the expressed will of the people,” Ho said of the Supreme Court decision.
“When a district judge acts hastily, yet appellate courts are told not to ‘rush in,’ that’s not a plea for judicial sobriety—it’s a recipe for district judge supremacy,” Ho said.
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