When They Come for the Judges

Utah Senator Mike Lee knows better than this, which means that it’s about politics and not about the law. Specifically, it’s about letting politics trump the rule of law, the principle that there are laws that everyone, including the government, must follow. Apparently, the senator is no longer a fan.

Senator Lee, the son of Rex Lee, Solicitor General of the United States during the Reagan administration, was both an Assistant United States Attorney and a law clerk to U.S. Supreme Court Justice Sam Alito after graduating from law school. He most decidedly understands that his tweet, which implies that judges who rule against the administration are corrupt, is false.

This has been a persistent beat with Lee of late. Earlier this month he tweeted, “This has the feel of a coup—not a military coup, but a judicial one,” after a judge in New York issued a temporary halt to DOGE’s access to Treasury Department systems. Temporary restraining orders, or TROs, which we’ve had occasion to discuss here recently, freeze the status quo in place for a few days, or at most a couple of weeks, so that the judge can get the information they need to make a more substantive decision about whether a stay during the course of the litigation is warranted. That sort of temporary pause, designed to prevent anything that cannot be undone down the road from happening is hardly a coup. But there you have it, the distinguished senator from Utah, spreading misinformation. It is a dangerous campaign to undermine the rule of law, as Democratic Rep. Zoe Lofgren said Tuesday.

Calling for judges to be impeached just because you don’t like their decisions is nothing short of anti-constitutional. Judicial review, the power of the courts to declare laws passed by Congress or actions taken by the president unconstitutional, is a deep-seated part of our rule of law system.

Judicial review prevents excesses by either Congress or the president. The basis for it is logical if you use the same starting point the Founding Fathers did, that men are not angels and so, we must guard against abuses of power by those in control of government.

Writing in 1788, Alexander Hamilton hinted at the importance of judicial review, which would be formalized by the Supreme Court 15 years later in Marbury v. Madison. But even then, the key point was already clear. The source of our laws is the Constitution, not a legislature that goes beyond or outside of it. “No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid,” Hamilton wrote. The same reasoning applies to prevent an imperial presidency. A president who takes actions that violate the Constitution and our laws must be held in check by the judiciary. Suggesting judges should be impeached for fulfilling that duty is to throw away the Constitution itself.

Impeachment for judges, as for presidents, can only be had for high crimes and misdemeanors. “Interfering with DOGE”—granting a temporary stay—hardly reaches that bar, one that Republicans themselves set very high during Trump’s last term in office. If trying to steal an election and refusing to stop an attack on the Capitol doesn’t qualify, then it’s ludicrous to claim that a judge who enters a TRO should stand for impeachment.

But that’s where we are. Elon Musk, lacking the finesse of Lee, simply calls for judges to be fired, ignoring the fact that they have life tenure.

It’s unlikely that he doesn’t understand how the Constitution works in this regard. His constant repetition on this theme seems more likely an effort to destabilize the judiciary. If enough people can be convinced judges are corrupt, it is so much easier to push them out of the way; just like they down with federal law enforcement, the intelligence community, and government employees in general.

And isn’t that what this is really about? The judiciary is one of the few democratic institutions left that can interfere with the plan to place all the reins of power in the hands of the president. So when Mike Lee calls for judges to be impeached and Elon Musk responds that “it is the only way,” we know where this is headed.

Tuesday night Musk tweeted about impeaching judges at least six times. “The only way to restore rule of the people in America is to impeach judges. No one is above the law, including judges. That is what it took to fix El Salvador. Same applies to America,” he wrote at one point.

The president of El Salvador, Nayib Bukele retweeted Musk, adding, “If you don’t impeach the corrupt judges, you CANNOT fix the country.”

Neutering the judiciary is the tactic of a strongman, and Bukele is not without critics for the tactics he has used in his country, tamping down on civil rights and democracy in the name of law and order. He has offered to take in people the Trump government deports, including U.S. citizens and legal residents, which would violate U.S. law. Not exactly the role model for American justice that Musk seems to think he is. Secretary of State Marco Rubio also praised Bukele after a recent trip, even though he has thrown thousands of people in prison without due process.

What set Musk off? On Monday, a federal judge issued a temporary restraining order blocking the Department of Education and the Office of Personnel Management from sharing sensitive records with DOGE. On Tuesday, another judge gave the government until March 10 to file information about DOGE’s activities at the Treasury Department with the court. But courts have been restricting the Trump administration from continuing its ham-fisted operations until they can be subjected to judicial scrutiny in so many cases these past few weeks that it’s impossible to say precisely what upset Trump’s assistant and his cronies.

I am reminded again, as we are likely to be endlessly over the course of the next few months, of the words of the German pastor and theologian Martin Niemöller, who wrote:

“First they came for the socialists, and I did not speak out—because I was not a socialist.

Then they came for the trade unionists, and I did not speak out—because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—because I was not a Jew.

Then they came for me—and there was no one left to speak for me.”

The words reflected his early complicity in Nazi Germany and later change of heart.

It seems like an extreme example. But they are coming for the judges. And not just the judges. Already they have come for federal employees, transgender people, immigrants, lawyers, the press, epidemiologists, scientists, and more.

The time for all of us to speak up and join forces to protect each other is now, before it is too late.

We’re in this together,

Joyce