A Spanking From the Bench

 

Judge J. Harvie Wilkinson III
4th Circuit Court of Appeals

In political time, last Thursday now seems months away. I've been in the garden constantly since Thursday, putting in the knee-work to help it out of its winter dormancy, but all this time I've been thinking of Federal Judge J. Harvie Wilkinson's declining to lift a Maryland judge’s order that the Trump administration “facilitate” the return of Kilmar Abrego Garcia, and I had promised myself I would eventually find Judge Wilkinson's full opinion to appreciate the beauty of its composition. Here's Easter, and I'm taking the day off to do that thing. I like good writing.

The Executive possesses enormous powers to prosecute and to deport, but with powers come restraints. If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home? And what assurance shall there be that the Executive will not train its broad discretionary powers upon its political enemies? The threat, even if not the actuality, would always be present, and the Executive’s obligation to “take Care that the Laws be faithfully executed” would lose its meaning.

Judge Wilkinson was reacting in real time to what he was hearing out of Trump, who had touted his newest wet dream of deporting American-born criminals to that same Salvadoran gulag: " 'Homegrowns are Next’: Trump Doubles Down on Sending American ‘Criminals’ to Foreign Prisons," ABC NEWS (Apr. 14, 2025, 6:04 PM); David Rutz, "Trump Open to Sending Violent American Criminals to El Salvador Prisons," FOX NEWS (Apr. 15, 2025, 11:01 AM EDT (Time). A president who could do that is fully capable of training his powers for disappearance on his political enemies. Wilkinson sees where this ends.

Wilkinson's final explosive paragraph, in which he warns Trump about flauting the "rule of law," words that were being read aloud by news anchors last Thursday night, has become the go-to text of our stand for constitutional government, but the paragraph before that is also a model for logic and -- oddly -- regret. Our Constitution gave us co-equal branches for a good reason, Wilkinson is saying. Trump threatens to destroy that balance, which saddens Judge Wilkinson as much as it angers him:

Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both. This is a losing proposition all around. The Judiciary will lose much from the constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply. The Executive will lose much from a public perception of its lawlessness and all of its attendant contagions. The Executive may succeed for a time in weakening the courts, but over time history will script the tragic gap between what was and all that might have been, and law in time will sign its epitaph.

Trump's "lawlessness and all of its attendant contagions." The plague metaphor perfectly captures the moment we're in.

J. Harvie Wilkinson, aged 80, a Ronald Reagan appointee, grew up in affluence in Virginia and holds his law degree from the University of Virginia. Ran for Congress as a Republican a single time in 1970. After decades on the 4th Circuit, Wilkinson reportedly made President George W. Bush's short list for appointment to the Supreme Court.

In 2002, in a case arising from the aftermath of the Sept. 11 terrorist attacks, Wilkinson endorsed widened presidential powers when it comes to foreign affairs. He wrote that “the authority to capture those who take up arms against America belongs to the commander in chief.” He has also been critical of judicial overreach, criticizing Roe v. Wade, the 1973 decision that established a constitutional right to abortion. (NYTimes).

So his slapdown of Trump's lawlessness attracted more than casual interest on the Right, which has idolized Wilkinson as a brilliant conservative.