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judiciary
Constitutional Crisis Intensifies as Lawless Trump Ignores Federal Court Orders
"We are in the midst of a constitutional crisis right now," said one legal expert. "We never have seen anything like this."
Feb 11, 2025
The Trump administration's defiance of court orders that threaten to hamper the president and unelected billionaire Elon Musk's assault on federal agencies and basic rights has legal experts and other observers warning of a perilous new phase in the United States' rolling constitutional crisis.
On Monday, the Revolving Door Project (RDP) launched an effort to track the Trump administration's refusal to comply with orders from the federal judiciary and detail the impact that obstinance is having across the country.
The watchdog group pointed to several specific examples, including the Environmental Protection Agency's refusal to "disperse already-awarded grants funded by the Inflation Reduction Act, in apparent defiance of" federal judges' orders against the Trump administration's sweeping funding freeze.
"NOTHING is more important than civil society pressuring judges to have a spine in the face of Musk and Trump's intransigence," Jeff Hauser, RDP's executive director, wrote on social media late Monday. "Judicial orders must be enforced!"
Journalists Judd Legum and Noel Sims highlighted another example on Tuesday, noting that the administration is "prohibiting National Institutes of Health (NIH) staff from issuing virtually all grant funding" despite two federal court injunctions against the freeze.
David Super, a professor at Georgetown University Law Center, told Legum and Sims that the Trump administration is "in contempt of court," calling the continued freeze on NIH grants "completely unlawful."
"The administration cannot choose which law it will follow or ignore. These are not partisan or political issues. These are rule of law and process issues. We cannot afford to remain silent."
Super is among a growing number of legal experts sounding the alarm about the nation's descent into a full-blown constitutional emergency.
"We are in the midst of a constitutional crisis right now," Erwin Chemerinsky, a constitutional law expert and dean of the University of California, Berkeley School of Law, toldThe New York Times late last week. "There have been so many unconstitutional and illegal actions in the first 18 days of the Trump presidency. We never have seen anything like this."
"Systematic unconstitutional and illegal acts create a constitutional crisis," Chemerinsky added.
Both President Donald Trump and Vice President JD Vance have levied criticism at the federal judiciary in recent days as it has put up roadblocks that have hindered the new administration's ability to lawlessly impose its will.
"Certain activists and highly political judges want us to slow down, or stop," Trump wrote in a social media post early Tuesday, just days after Musk floated allowing "elected bodies" to terminate "the worst 1% of appointed judges."
Federal courts have proven a significant obstacle to the Musk-led Department of Government Efficiency( DOGE), whose efforts to take over critical systems and seize highly sensitive data have sparked high-stakes legal battles.
In a statement on Monday, American Bar Association (ABA) president William Bay noted that "in the last 21 days, more than a dozen lawsuits have been filed alleging that the administration's actions violate the rule of law and are contrary to the Constitution or laws of the United States."
"The administration cannot choose which law it will follow or ignore," said Bay. "These are not partisan or political issues. These are rule of law and process issues. We cannot afford to remain silent. We must stand up for the values we hold dear. The ABA will do its part and act to protect the rule of law."
"We urge every attorney to join us and insist that our government, a government of the people, follow the law," he added. "It is part of the oath we took when we became lawyers. Whatever your political party or your views, change must be made in the right way. Americans expect no less."
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Warren Says Senate Must Use 'Every Minute' Until January 3 to Confirm Federal Judges
"While still in charge of the Senate and the White House, we must do all we can to safeguard our democracy," said the senator.
Nov 08, 2024
In an op-ed on "the plan to fight back" against the incoming Trump administration, U.S. Sen. Elizabeth Warren on Thursday provided a pep talk to anguished supporters of Vice President Kamala Harris as the nation faces another four years with the far-right MAGA movement at the helm of the government—but she also issued a demand of the Senate before President-elect Donald Trump takes office.
"While still in charge of the Senate and the White House, we must do all we can to safeguard our democracy," wrote the Massachusetts Democrat at Time magazine. "Senate Majority Leader Chuck Schumer must use every minute of the end-of-year legislative session to confirm federal judges and key regulators—none of whom can be removed by the next president."
As Law.comreported on Thursday, there are currently four federal appeals court nominees awaiting Senate floor votes, a nominee for the United States Court of Appeals for the Fourth Circuit awaiting a Senate Judiciary Committee vote following a confirmation hearing in July, and 23 district court nominees awaiting floor or committee votes.
The lame-duck session of Congress will begin November 12 and lawmakers will leave for holiday recess December 20. On January 3, the 119th U.S. Congress will convene, with the Republican Party taking control of the upper chamber.
"Given the outcome of the election, the reality is that we now have a rapidly closing window to confirm well-qualified, fair-minded judges who will protect our rights and serve as one of the last guardrails in upholding our nation's laws and the Constitution," said Maggie Buchanan, managing director of Demand Justice. "Even one judge can make a difference. We don't have a minute to lose."
"With the prospect of more Trump judges on the horizon, this will hopefully create the urgency we've needed all along."
Law.com reported that Schumer (D-N.Y.) has filed for cloture on President Joe Biden's nominations of Judge Jonathan Hawley and former assistant U.S. Attorney April Perry, both of whom were nominated for federal trial courts in Illinois. The Senate will likely vote on the two nominees next week.
"We have always been adamant that the Senate must confirm all of President Biden's nominees and fill every possible vacancy, regardless of who wins the election," said Jake Faleschini, program director for Alliance for Justice, in a statement. "With the prospect of more Trump judges on the horizon, this will hopefully create the urgency we've needed all along."
A spokesperson for Sen. Dick Durbin (D-Ill.), chair of the Senate Judiciary Committee, told Law.com that Durbin "aims to confirm every possible nominee before the end of this Congress."
At Time, Warren wrote that the Harris campaign and the Biden White House have reached out to working people with pro-labor policies and proposals aimed at reducing prices and holding corporations accountable. But the senator acknowledged that "good economic policies do not erase painful underlying truths about our country."
"Americans do not want a country where political parties each field their own team of billionaires who then squabble over how to divvy up the spoils of government," wrote Warren. "Vice President Harris deserves credit for running an inspiring campaign under unprecedented circumstances. But if Democrats want to earn back the trust of working people and govern again, we need to convince voters we can—and will—unrig the economy."
Before Trump takes office, she added, "to resist Trump's threats to abuse state power against what he calls 'the enemy within,' Pentagon leaders should issue a directive now reiterating that the military's oath is to the Constitution."
Looking ahead to the second Trump administration, Warren advised her party to unite "against Trump's legislative agenda" as it did when the Republicans tried to repeal the Affordable Care Act in 2017.
"Democrats did not have the votes to stop the repeal," wrote the senator. "Nevertheless, we fought on. Patients kept up a relentless rotation of meetings in Congress, activists in wheelchairs performed civil disobedience, and lawmakers used every tactic possible—late night speeches, forums highlighting patient stories, committee reports, and procedural tactics—to draw attention to the Republican repeal effort. This sustained resistance ultimately shifted the politics of health care repeal. The final vote was a squeaker, but Republicans lost and the ACA survived."
"Trump won the election, but more than 67 million people voted for Democrats and they don't expect us to roll over and play dead," wrote Warren. "We will have a peaceful transition of power, followed by a vigorous challenge from the party out of power, because that's how democracy works."
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The Bullying of Adeel Manji Tells Muslim Americans They Are 2nd Class Citizens
The treatment of the first Muslim federal appellate nominee sends a message to people of Muslim faith with aspirations for the federal bench: don’t bother, unless you, too, want to be branded as a terrorist-sympathizer.
Apr 10, 2024
President Joe Biden’s recent nomination of a Harvard-educated litigation partner from a white-shoe law firm to the U.S. Court of Appeals for the Third Circuit should have been pretty run of the mill, as far as judicial confirmation processes go.
But one aspect of the nominee’s bio has contorted what would likely otherwise have been an uneventful confirmation process into a grotesque spectacle: The nominee, Adeel Mangi, is a Muslim American of Pakistani descent. If confirmed, he would be the first Muslim federal appellate judge in the country.
No non-Muslim judicial nominee has been asked whether they condemn the October 7 terrorist attacks by Hamas on Israel, accused of celebrating 9/11, or asked to confirm that they condemn genocide.
It started at his confirmation hearings in December 2023, which his young children attended.
“Do you condemn the atrocities of the Hamas terrorists?” Sen. Ted Cruz (R-Texas) asked. “Is there any justification for those atrocities?”
“Do you believe that Zionist settler colonialism was a provocation that justified Hamas’ atrocity against Jews in Israel?” demanded Sen. Tom Cotton (R-Ark.).
Sen. John Kennedy (R-La.) insinuated that Mangi “celebrate[s] 9/11,” rattling off a list of speakers invited to an event organized by Rutgers Law School’s Center for Security, Race, and Rights to commemorate the 2001 attacks—which Mangi did not attend, had no apparent role in organizing, and, he said, of which he was not even aware. Mangi had been a member of the center’s advisory board.
When Democrats had the floor, they revisited the topic to give Mangi an opportunity to denounce terrorism and genocide—which he did, repeatedly and unequivocally. But even in their friendly form, the questions left an impression that religious and racial stereotypes had hijacked the hearings.
“Is there any hesitation on your part to condemn genocide?" Peter Welch (D-Vt.) asked. “Is there any hesitation on your part to condemn any person who commits terrorist activities in violence toward innocent people?”
As the CEO of the National Council of Jewish Women, Sheila Katz, put it: “It was a heartbreaking scene for the first Muslim American federal circuit judicial nominee to face relentless questioning on Israel, terrorism including September 11, and the Holocaust.”
This treatment is far outside the norm for nominees to the bench. No non-Muslim judicial nominee has been asked whether they condemn the October 7 terrorist attacks by Hamas on Israel, accused of celebrating 9/11, or asked to confirm that they condemn genocide.
Islamophobic questioning is not the only way Mangi’s treatment has departed from the average confirmation process. Republican senators have also given inordinate attention to Mangi’s record of pro bono service. He represented the family of an incarcerated man murdered by a correctional officer and is on the advisory board of Alliance of Families for Justice, a nonprofit that supports families impacted by mass incarceration that has advocated for the release of aging prisoners, including people convicted of killing police officers. The senators used this to say that he has “sympathy for, and association with, some of the most radical elements in society,” including, as Sen. Mitch McConnell (R-Ky.) put it, “those who support cop killers.”
This twisting of Mangi’s pro bono record to paint him as criminal-adjacent is shocking but not surprising. Diverse nominees—including people of color and women—are routinely grilled on their positions on civil rights and criminal justice more intensively than white men nominated to the bench. One study found that nominees of color like Mangi get more than twice as many questions on criminal justice as white nominees. And nominees with experience in public defense—an essential role in our legal system—face particularly brutal questioning. In recent history, these inquiries have increasingly sounded less like questioning and more like badgering of women and people of color about their public interest work, heavy with insinuation that representing marginalized people makes one unfit for the bench.
This is illustrated in the case of Arianna Freeman, a Biden nominee who became the first Black woman to serve on the Third Circuit Court of Appeals. Referring to her 12 years as a public defender, Cruz told her that she had “devoted [her] entire professional career to representing murderers, to representing rapists, representing child molesters.” He branded her a “zealot” for defending a man on death row—whose sentence the Supreme Court later overturned.
And during confirmation hearings for Justice Ketanji Brown Jackson, Sen. Josh Hawley (R-Mo.) said that she had a “long record” of letting child pornography offenders “off the hook,” referring to sentences that experts called mainstream. Republicans also criticized Jackson for representing Guantánamo Bay detainees, referring to her “advocacy for these terrorists.”
With Mangi’s hearings, then, senators are yet again issuing bad faith characterizations of the public interest work of a nominee who would increase the diversity of the federal bench. At this point, even if Mangi’s confirmation goes through—which is increasingly doubtful, as three Democrats have announced in recent weeks that they no longer support him—damage will have been done.
Most fundamentally, the bullying of a prominent Muslim American on the national stage tells all our Muslim friends and neighbors that they are second-class citizens. And it comes at a time when hatred is surging: reports of Islamophobia have doubled in recent months, antisemitism incidents have skyrocketed, and hate crimes in general have surged. So it is more important than ever that we take a strong stand against bias and othering of underrepresented groups.
More specifically, Mangi’s treatment sends a message to people of Muslim faith with aspirations for the federal bench: don’t bother, unless you, too, want to be branded as a terrorist-sympathizer—in front of the world and, as in Mangi’s case, your young children. The potential chilling effect on Muslim Americans vying for federal judgeships undermines the legitimacy and effectiveness of the judiciary.
As my colleagues have previously noted, a diverse bench leads to richer jurisprudence. That’s because judges with underrepresented personal and professional experiences bring important and relevant perspectives to the problems in front of them and push back on assumptions that a homogeneous panel might hold. As Justice Sandra Day O’Connor put it, working with Justice Thurgood Marshall, a civil rights lawyer and the first Black justice, sometimes “change[d] the way [she saw] the world.”
On a more basic level, underrepresented communities are more likely to trust a diverse judiciary. This is important because courts derive their legitimacy from the public’s trust in them. “How can the public have confidence and trust in such an institution if it is segregated—if the communities it is supposed to protect are excluded from its ranks?” federal district court Judge Edward Chen once pondered.
Finally, the negative focus on Mangi’s pro bono record—especially on the heels of other hearings in which nominees have been disparaged for public interest work—casts that work in exactly the wrong light. Pro bono work should not be a political liability. To the contrary, it is the ethical obligation of every attorney to provide legal services to those who cannot afford them. And justice depends on it.
When someone loses a lawsuit, it is frequently not because their claim was meritless, but simply because they did not have a lawyer. In immigration removal hearings, for example, unaccompanied children without lawyers prevail only 15% of the time. By contrast, 73% of unaccompanied children with representation are allowed to remain in this country.
But, according to one study, in a whopping 92% of civil matters—from eviction to police brutality to discrimination—low-income Americans could not find legal representation. Pro bono practice by corporate lawyers like Mangi is crucial to filling the access to justice gap. We should be encouraging pro bono work, not giving talented young attorneys who dream of becoming judges a reason to avoid it.
Mangi’s confirmation process has been a blueprint for how not to treat a nominee for the federal bench. His hearing—and the subsequent campaign against him—has undermined our shared values of equality, inclusivity, and justice. We must do better.
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