Episode No. 158--Judges Under Attack

On Sunday morning, February 9th, I couldn’t help but do exactly the opposite after I ran through my morning news feed. That’s because one item in the news that morning made my heart rejoice and my mind to conjure up the image of Elon Musk running through the White House West Wing muttering the name “Engelmayer” in disgust. You probably know why, and there is danger for our democracy built into that.

Transcript

Episode No. 158--Judges Under Attack

Welcome to Keep the Faith, the podcast in which we explore contemporary issues through the prism of Jewish law and tradition.

“Do not rejoice when your enemy falls, and do not let your heart be glad when he stumbles.” So does the Book of Proverbs, Sefer Mishlei, enjoin us, but on Sunday morning, February 9th, I couldn’t help but do exactly the opposite after I ran through my morning news feed. That’s because one item in the news that morning made my heart rejoice and my mind to conjure up the image of Elon Musk running through the White House West Wing muttering the name “ Engelmayer” in disgust, something he surely was doing that morning and something that he’s been continuing to do for almost two weeks now.

As far as I’m concerned, at least, Elon Musk is Public Enemy No. 1, and I can’t help but rejoice whenever he suffers any kind of setback, but this one was so much sweeter.

And so the topic for this episode is why Elon Musk was—and still is—muttering the name  Engelmayer, what that could mean for our republican democracy, our tripartite system of checks and balances, and the independence of the judiciary.

I’m not the  Engelmayer he was muttering against—and apparently can’t stop plotting revenge against. That  Engelmayer is the Hon. Paul Adam  Engelmayer, a U.S. District Court Judge for the Southern District of New York (otherwise known as the 2nd U.S. Court District). Located in Manhattan, the 2nd District is arguably the most influential and prestigious district court in the land because of the complex financial, corporate, and other high-stakes cases that come before it.

We are related—he’s a distant cousin—but he and I have never met, at least not that I can recall. As a young boy, I did meet members of his family, but he was born in 1961 whereas my visits to his family were all in the 1950s.

Nevertheless, I’ve followed his judicial career ever since the Senate unanimously confirmed him in 2011 (on my birthday, no less) and I’ve taken great familial pride ever since in his career on the federal bench.

Musk's comments came after a ruling from Judge  Engelmayer the night before. Nineteen state attorneys general, all Democrats, filed a lawsuit to stop Musk and his “Department of Government Efficiency” (DOGE) from accessing the Treasury Department’s sensitive payment information. They raised serious legal, cybersecurity, and privacy concerns, which  Engelmayer's temporary order addressed. He's not the judge handling the case, though—that's Judge Jeannette A. Vargas.  Engelmayer was the on-call judge that Saturday night and temporarily blocked DOGE's access until she could decide how to move forward with the lawsuit. On February 14, she extended  Engelmayer's ruling while she reviews the issues.

A former federal prosecutor with a distinguished record,  Engelmayer was appointed to the highly influential 2nd District Court by President Barack Obama, a nomination the American Bar Association rated “Unanimously Well Qualified.” Republicans on the Senate Judiciary Committee, which has to approve judicial nominations before the Senate votes on them, also apparently considered him “Unanimously Well Qualified” despite his having been nominated by a Democratic president because not one of them even bothered to attend  Engelmayer’s confirmation hearings. And, as noted, he was unanimously confirmed by the Senate.

 Engelmayer rates very highly on the website therobingroom.com, where attorneys and others go to “judge the judges” before whom they appear. He is a greatly respected jurist, known for his scholarship, temperament, evenhandedness, and meticulousness in handling complex litigation, and for rendering decisions that are clearly understood and soundly reasoned.

Most pleasing to me of all is his reputation for being a true “mentsch.” Among the 10-star comments on therobingroom.com is this one: “Upon appearing before this Judge for the first time, he extended his hand for a handshake and said ‘Hi, I’m Paul  Engelmayer.’ I was astonished (in a good way), as the Judge's conduct demonstrated a sense of humility that often gets lost when a human being becomes a ‘judge.’”

This is the judge Elon Musk keeps muttering about, the judge he wants the House to impeach and the Senate to convict and remove, and all because  Engelmayer temporarily blocked Musk from getting his hands on highly sensitive Treasury Department records and data systems. That access,  Engelmayer ruled, belongs only to specialized Treasury employees “who have passed all background checks and security clearances and taken all information security training called for in federal statutes and Treasury Department regulations.” (On Sunday, it was learned that Musk now demands access to the IRA system that contains our tax return data.)

On Tuesday, articles of impeachment were filed with the House, by Wisconsin Republican Rep. Derrick Van Orden. A separate filing of articles of impeachment is expected tomorrow, this one by Rep. Eli Crane. The Arizona Republican insists that  Engelmayer is “an activist judge trying to stop the Trump administration from, you know, executing their, you know, Article 2 powers to make sure that the laws are faithfully executed.” (Article II of the Constitution says nothing about a president being able to grant untrained outsiders the right to access sensitive government data. Doing so, in fact, may violate personal privacy and other provisions of the 1946 Administrative Procedure Act as those were amended by the 1966 Freedom of Information Act.

Impeachment by the House is possible but doubtful. Impeachment and removal are restricted to high crimes and misdemeanors, and no matter how they’ll try to spin it,  Engelmayer’s ruling doesn’t qualify. Only 15 judges have ever been impeached by the House, and only eight have ever been convicted by the Senate.

Because impeachment merely requires a one-vote majority to pass, it may be possible to get a majority in this and similar cases against other jurists Musk wants to see removed, but that doesn’t seem likely. Even if these jurists are impeached, conviction requires a two-thirds vote of the Senate and that’s not considered to be even a remote possibility.

In other words, taxpayer money Republican legislators always claim they want to protect when budgets need to be approved will be wasted by them on an effort that is clearly based on partisanship. That should concern all of us because of what this effort is really all about: It’s an attempt to threaten judges into siding with Musk and Trump no matter what the law says about the things they’re doing.

What should also concern all of us is what may happen if the judges ignore these threats. If they do, there is the very real possibility that Trump and Musk will attempt to defy court orders regardless of who issued them, including the Supreme Court of the United States (SCOTUS).

It would not be the first time a president thumbed his nose at court rulings, from SCOTUS especially. Following a ruling in Worcester v. Georgia in 1832, Andrew Jackson reportedly and quite famously exclaimed, “[Chief Justice] John Marshall has made his decision; now let him enforce it!” Whether he actually said that or anything like it, Jackson defied the court’s ruling in that case, which upheld the sovereignty of the Cherokee Nation and overturned a Georgia state law that gave it authority over Native American lands.

In effect, that ruling also nullified the Indian Removal Act of 1830, which Jackson had signed and the execution of which he continued to pursue over his remaining five years in office despite SCOTUS’ruling, and which his successors, Congress, and several states also ignored. That defiance led to the Trail of Tears, one of the darkest blots in this country’s history, when 60,000 Indigenous peoples were forced to march from their ancestral homelands in Georgia, Tennessee, Alabama, North Carolina, and Florida to areas in Kentucky. At least 15,000 Indigenous peoples died from various causes along the way.

Jackson's refusal to enforce the SCOTUS decision set a dangerous precedent for the rule of law because if such defiance is allowed to stand, it renders moot the Constitution’s checks and balances system considered to be so crucial to our democracy.

President Abraham Lincoln also ignored SCOTUS and got away with it. After the Civil War began, he suspended the writ of habeas corpus in order to allow the arrest of anyone suspected of aiding the Confederacy even in the absence of any evidence. In 1861’s Ex Parte Merryman, the court declared that Lincoln’s suspension was unconstitutional because only Congress was given the power to do so. Lincoln simply ignored the ruling.

The court was powerless to do anything substantive to back up its rulings, and that is not lost on Musk and Trump.

Jewish law has much to say about showing disrespect to judges and their decisions. Deuteronomy 17:8-12 is very clear on this. Once “the magistrate[s] in charge at the time” have rendered their decision in a matter before them, it states, we must “carry out the decision…scrupulously,” and we “must not deviate from the decision that they announce” in any way.

The Torah takes refusing to follow court rulings so seriously that the penalty it prescribes for doing so is death. The Talmud, for its part, debates when and where the execution is to take place. Rabbi Akiva argued that the offending litigant had to be arrested by the defied court wherever it was located but then had to be taken to prison in Jerusalem, there to be executed during the very next pilgrimage festival—Passover, Shavuot, or Sukkot—when the city would be overflowing with people. In that way, “the people will hear [of the execution] and be afraid and will not act presumptuously again,” in the words of Deuteronomy 17:13.

The sage Rabbi Yehudah, on the other hand, ruled that the offender had to be executed immediately in the place where the court sat. To accommodate Deuteronomy 17:13, he also ruled that messengers had to be sent throughout the country announcing the execution and the reasons for it. After all, as he said to Rabbi Akiva, the verse says that “the people will hear” of the execution, not that they had to witness it.

Fortunately, the death penalty ceased to be the punishment when the Sanhedrin (Israel’s high court and legislature rolled into one) ceased to exist—and it was rarely enforced even while it did exist. In its place, the most severe penalty was being whipped up to a maximum of 39 lashes depending on the gravity of the offense.

There are 365 negative commandments out of the Torah’s 613. Maimonides, the Rambam, lists cursing a judge, which includes defying a judge’s ruling, as Negative Commandment 315. The number of lashes depended on how serious the defiance was deemed by the court.

Torah law is also very insistent on who is qualified to be a judge and how a judge must exercise that role. Judging by therobingroom.com accolades, the ABA’s “Unanimously Well Qualified” rating, the bipartisan ease in confirming  Engelmayer’s appointment, and other sources, U.S. District Court Judge Paul A.  Engelmayer fits perfectly all of the Torah’s requirements.

Fortunately for Elon Musk, this country doesn’t operate based on Torah law, so the best we can hope for is a severe tongue-lashing.

Unfortunately for this country, however, tongue-lashings alone won’t deter him and his clearly fearless leader from their efforts to turn the Constitution into a piece of worthless parchment. That job falls to all of us who are eligible to vote.

Two special elections will be held in Florida on April 1 to fill seats vacated by Rep. Matt Gaetz, who resigned when he was tagged by Trump to be attorney general (he later withdrew his nomination in disgrace), and by Rep. Michael Waltz, Trump’s national security advisor. A third special election will be held in New York, assuming that the Senate confirms Rep. Elise Stefanik as U.N. ambassador, which seems likely.

All three are Republicans. Democratic wins in two of the races would put the House back in Democratic hands, effectively putting up a one-vote majority roadblock to the efforts of Musk and Trump to undermine our democracy. The midterm elections in 2026 could then turn that roadblock into a mighty wall for Musk to bang his head against, another image I would love to conjure up.

This is Rabbi Shammai  Engelmayer. I hope you come back for my next podcast, whenever that drops, and I’d like to hear what you have to say about this or my other podcasts. Go to www.shammai.dot.org — w-w-w-dot-s-h-a-m-m-a-i-dot-o-r-g — and email please.

Shabbat Shalom, stay healthy, keep taking all precautions necessary to protect against all the viral diseases currently afflicting us, and, above all, stay safe!