Courage is alive and well, every now and then

Three judges stand up for the rule of law in Trump deportation cases

U.S. District Judge Paula Xinis

Note to readers: From time to time, Tom James, a former journalist colleague and retired attorney, will contribute to this newsletter.

By Tom James

Some folks — not lots these days, but some — are familiar with the book title, Profiles In Courage. The book is nearly 70 years old. It is credited to the late President John F. Kennedy when he was a U.S. Senator in the 1950s. Like most books "written" by politicians, Profiles In Courage, or at least large swaths of it, was the work of somebody else (Kennedy speechwriter Ted Sorenson) and likely its purpose was more political than educational. But JFK won a Pulitzer for it.

The subject of the book is acts of political bravery by various U.S. Senators, eight of them. Not the least, certainly, was Robert Taft, a very Republican politician from very Republican Ohio, who served from 1939 to 1953. The act in focus in the Kennedy book was Taft's public criticism of the legality of the Nuremberg Trials; he saw the prosecution of war criminals as “victor’s justice” that violated principles of American jurisprudence. Given the to-be-expected unpopularity of members of the Nazi regime after World War II, Taft's principled stand was at least chancy and it is believed that it cost him a presidential nomination.

“Taft so strongly believed in the wisdom of the Constitution that speaking out was more important than his personal ambitions or popularity,” says a description of the Taft chapter from the Kennedy Presidential Library. “Many years later, William O. Douglas of the Supreme Court agreed with Taft’s view that the Nuremberg Trials were an unconstitutional use of ex post facto laws.”

Whatever one may think of Kennedy or Taft or the righteousness of their positions, there always is more than meets the eye, and examples of political bravery are four-leaf clovers, to be sure.

But every now and then . . .

Fast forward to the Hon. James Boasberg, the chief judge of the U.S. District Court for the District of Columbia, who this week threatened to hold Trump administration officials in criminal contempt for violating his orders in the case of the Venezuelan deportations.

Trump thinks — if we can call it that — that Judge Boasberg should be impeached for telling Trump and his pack of dogs what the law is and how it is to be administered. (That's what U.S. courts do, folks, in nations where the dogs are kept in kennels.) In short, Judge Boasberg finds himself in the position of a brave man called upon to act bravely. He already has done so and it is likely that he will continue to do so.

A profile in courage? Yes, every now and then.

The good judge does not stand alone. In the case of Kilmar Armando Abrego Garcia, the Maryland man mistakenly deported to a prison in El Salvador, Harvie Wilkinson, chief judge of the 4th U.S. Circuit Court of Appeals, and Paula Xinis, a District Judge for the U.S. District of Maryland and formerly a Federal Public Defender in that court, find themselves engaged in a similar legal fray. Both are well-armed academically and stern in their defense of the role of the judiciary in our democracy.

Both are appalled at where the executive branch has gone with the Abrego Garcia case and are saying so — Wilkinson with a rebuke of Trump administration officials and Xinis with the threat of contempt proceedings.

Historical note: One of the disturbing themes that emerged from the trials at Nuremberg was the failure of the judiciary under National Socialism to stand against the horrors perpetrated by Hitler & Co. There appears to be more courage in effect here.