I wish the federal judges would say something

In my line of work, I am privileged to have gotten to know more than a few federal judges. Indeed, a couple of them are my former students, I'm proud to say.

When you talk about Black lives and race relations, the federal judiciary has a glorious history of doing the right thing. In the second half of the last century, brave federal judges stood up to racism and bigotry, in the South and elsewhere, and paved the way for notable progress. It took a lot of smarts, and a lot of guts. 

A couple of things about the federal judges in Oregon are particularly relevant to today's headlines. One is that they love their courthouses, the Pioneer and the Hatfield. They never seem to tire of showing these places off, and rightly so. They're beautiful facilities, one full of history and the other full of promise.

So fond are the judges of the courthouses that they take them to heart. If you disrespect the courthouse in any way, some of the judges regard it as a personal insult, even an assault. Old Judge John Kilkenny at the Pioneer, Judge Gus Solomon at the former Federal Court House on Sixth – you messed with those buildings, those judges would have your head. And the tradition hasn't died. I know some of the current judges view the courthouses almost as extensions of themselves. That kind of connection is wonderful.

Another attribute of the federal judges, and it's related to the first, is a constant worry about personal safety. The death threats do come, and as we saw just the other night with the assassination of the son of a federal judge in New Jersey and the wounding of her husband, the threats are not always idle.

Since the Oklahoma City bombing and 9/11, the safety concerns have led to all sorts of changes in how federal courthouses are built and operated. They moved a post office and everything but the judges out of the Pioneer Courthouse after 9/11. They built underground parking, too, so that the judges don't have to set foot on the street. The Hatfield Courthouse, constructed post-OKC, is a fortress compared to courthouses of old, and for good reason.

Because of the job hazards, the judges I have known have always expressed gratitude and full support for all those who protect them. It's been quite a while since I knew the setup first-hand, but I believe the U.S. Marshals are the bodyguards for the people, and the Federal Protective Service are the guards for the buildings. The judges rely on these sworn officers, and generally defer to their judgment. At least, that was the scene until a couple of weeks ago.

With this as the backdrop, it's more than a little depressing to read this story today about the atrocious conduct of the "acting" Trump Homeland Security secretary, Chad Wolf (now, there's a name). When he came through the Hatfield Courthouse with his hideous Fox News camera crew last week, he did get a waiver of some of the federal court rules forbidding photography, but then his entourage went ahead and took a bunch of forbidden photos anyway and posted them under his name on Twitter.

You don't take pictures in the courthouse without permission, and you sure as hell don't post them on the internet. It's like Rule No. 1 of courthouse security. Rule No. 0, really. Kindergarten basic.

Flabbergasted, the chief judge of the federal court has been trying to find out how and why it happened, but like everyone else trying to get answers about why Homeland Security is occupying Portland, so far he's getting no meaningful information.

This sorry episode makes crystal clear that the Homeland Security troops who are now jackbooting their way around downtown Portland are not here to protect the courthouse or control the crowds. They know little or nothing about either subject. Few or none of them have any relevant training. Even their boss doesn't know what he's doing, and probably doesn't care. No, the federal invasion is about something else, something darker. Photo ops and Fox News are part of that, for sure.

Controlling the crowds? That rationale for the occupation is laughable. Last night there were 1,000 people outside the Hatfield Courthouse, on a Monday night. Many moms with sunflowers, even some dads with leaf blowers and hockey sticks. If the Homeland Security dudes weren't inside the courthouse waiting to pounce, the crowd would have been more like 100.

Right on cue, after midnight, 900 of the thousand went home and a handful of the jerks who always come to a Portland demonstration looking for a fight tore down a plywood barricade and started pounding their way into the courthouse lobby. At that point, sure, the use of force was needed. But oh, the force! Dozens of federales, it seemed like a hundred, mostly border patrol guys in camouflage. Many carried sub-machine guns. And the tear gas! The troops must have a quota for tear gas use each night. They throw it around like beads from a Mardi Gras parade float. If they did that in Iraq, I believe it would be a war crime.

Would the violent end to the evening have happened if Homeland Security weren't here? Maybe. But it's hard to imagine the courthouse would have been any less safe without them.

The phony premise for the troops' presence is bad, but other harm is being done as well, and it's far worse. Video has captured the federal "police" committing unjustified acts of assault (Christopher David), assault with a deadly weapon (Donovan La Bella), and kidnapping (Mark Pettibone and others).

This is all being done in the name of protecting the courthouse, and by apt extension, protecting the judges.

The mayor doesn't want them here. The governor doesn't want them here. The City Council doesn't want them here. The majority of Portlanders don't want them here.

Do the judges want them here?

Given what just happened in New Jersey, it's a big ask, but I wish the federal judges would get on the phone with the Marshals Service, the Protective Service, the U.S. attorney, Chief Justice Roberts, and whoever else they can think of as helpful, and respectfully ask that the Homeland Security people withdraw. Noisily withdraw, so as to calm things down. It's better for the courthouse, better for the judges, and better for the moms and dads who shouldn't be out there singing and chanting, shoulder to shoulder, amidst the coronavirus.

I wouldn't ask for any public statement. The judges have to be careful. Eventually they are going to be asked to pass on the legality of what the occupying troops have been doing, and the judges have to keep an open mind about that. Indeed, they must avoid even the appearance of pre-judging anything. 

And they certainly can't put any wedge between themselves on the one hand and the Marshals and the Protective Service on the other. That's life and death on a daily basis going forward.

But can't the Marshals and the Protective Service handle the protests? I think they can. And can't they put away the sub-machine guns and tear gas, and make arrests for vandalism, when necessary, using legal procedures? I think they can.

I'll bet some of the judges agree with me. And shouldn't the people who are being protected have a say in what's being done in the name of protecting them?


  1. First, was there ever a more ominous government name than the Department of Homeland Security? I ran down the quote about Portland from yesterday. It was the Acting Deputy Homeland Security Secretary Ken Cuccinelli: “These are not peaceful protests. This is violent, criminal activity. And when they show up directed at law enforcement, it’s terrorism." Perhaps the judges don't speak out because once you're dealing with terrorists the rule of law no longer applies. You get fancy new labels like enemy combatants, etc...and you can be detained indefinitely without charges and without any way to challenge your detention. Terrorism status grants the government the ability to do whatever it wants. It can go to a foreign land we're not at war with and kill people with drones. It can throw citizens in unmarked vans. These powers are granted because we are at war. Oh, not a traditional war with an actual country. No, we're at war with a concept. So how long will it last? Well, how many times have you heard this? "The War on Terrorism...a war that will not end in our lifetimes"?

  2. The judges can be brave when we need them to be. Let's hope that this is such a time. Especially Oregon judges.

  3. I've met and through a family connection feel that I know Judge McShane in a small way. I imagine he's experiencing no small amount of conflict over the vandalism and subsequent occupation. I also expect he feels the weight of the attorneys that look to him for leadership. May God aid his discernment.

    More importantly, (I kid) are you going to bring back the underdog pool if/when the NFL returns?


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