Judge Who Scorched DOJ in Order Rejecting Its Abrego Garcia Appeal Is Hardline Conservative Reagan Appointee
AP Photo/Jose Luis Magana.
A federal judge brought out the rhetorical flamethrower for the Department of Justice attorneys who were seeking to overturn an order to facilitate the return of Kilmar Abrego Garcia from a Salvadoran prison, issuing a scathing opinion that characterized the government’s efforts as seeking to undermine “the foundation of our constitutional order.” The ruling is all the more remarkable in light of the judge’s more than half-century record as a staunch conservative.
Abrego Garcia was living in Maryland with his wife and three children (all of whom are U.S. citizens), when he was arrested in March. He was deported and sent to the Centro de Confinamiento del Terrorismo, abbreviated CECOT, a notorious maximum security prison established by El Salvador’s President Nayib Bukele that is well-documented to be a cesspool of human rights abuses. In multiple court filings, at least three separate Trump administration officials have conceded that Abrego Garcia had been mistakenly deported because of an “administrative error.”
There is no evidence of Abrego Garcia being a gang member or terrorist. He has never been convicted nor even charged with any crime. The DOJ has posted information about an alleged domestic violence incident in his past, but no charges were filed and Abrego Garcia’s wife has been vehemently advocating for her husband’s release. The government’s “proof” he was in MS-13 is limited to his clothing and one questionable claim by a confidential informant to a police officer who was suspended just weeks later for “serious professional misconduct” and pled guilty.
“The ‘evidence’ against Abrego Garcia consisted of nothing more than his Chicago Bulls hat and hoodie, and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York — a place he has never lived,” U.S. District Court Judge for the District of Maryland Paula Xinis wrote. The DOJ appealed up to the Supreme Court, which asked Xinis to clarify some points but essentially upheld her ruling, instructing the Trump administration to “facilitate” Abrego Garcia’s release and return to the U.S.
Thursday’s ruling by Judge J. Harvie Wilkinson III on the U.S. Court of Appeals for the Fourth Circuit, the appellate court for Xinis’ district court, was notable not just for its result and unflinching language, but also because of the judge’s longstanding conservative pedigree and jurisprudence.
Wilkinson, age 80, has been a prolific author, writing six books and a long list of op-eds and law review articles. His viewpoints have been extensively and publicly voiced for decades and are widely viewed as unquestionably conservative, with the voluminous evidence from his court opinions and these other writings.
The son of a successful banker, Wilkinson grew up in an affluent Richmond neighborhood and was active in conservative politics while an undergrad at Yale. After graduating from the University of Virginia School of Law in 1972, Wilkinson clerked for Supreme Court Justice Lewis F. Powell Jr., who was nominated by President Richard Nixon and literally wrote the 1971 memo that sparked the inspiration for the founding of numerous conservative think tanks and business lobbying groups like the Heritage Foundation, Cato Institute, Manhattan Institute, and American Legislative Exchange Council.
After stints as a journalist and law professor, Wilkinson got his turn on the bench when he was appointed by President Ronald Reagan to the federal appellate court and confirmed in 1984. His name was widely reported to be on the short list to be appointed to the Supreme Court on several occasions, most notably by President George W. Bush, who passed him over in favor of Chief Justice John Roberts and then Justice Samuel Alito.
Wilkinson’s opinions on the Fourth Circuit Court of Appeals repeatedly and consistently stake out conservative positions.
He authored a dissent in a 2018 case upholding a monument with a religious symbol on government land in Maryland, rejecting the majority’s ruling that the “Bladensburg Peace Cross” World War I memorial violated the Constitution’s Establishment Clause and ordering it to be altered or razed. The Supreme Court favored Wilkinson’s dissent, and the Fourth Circuit was overturned in 2019 in an opinion by Alito that was joined by Roberts and Justice Brett Kavanaugh, with Justices Clarence Thomas, Stephen Breyer, Elena Kagan, and Neil Gorsuch penning concurrences.
Wilkinson has been extremely sparing in granting death penalty reviews, wrote a concurrence in a 2008 case upholding Virginia’s ban on partial-birth abortion, and has a track record of opposing affirmative action, striking down racial preference programs by the Richmond city government in a landmark case that was upheld by the Supreme Court in a 1989 opinion by Justice Sandra Day O’Connor, joined by Chief Justice William Rehnquist, and Justices Byron White, John P. Stevens, Anthony Kennedy, and Antonin Scalia in whole or in part.
But perhaps the most relevant case vis-à-vis Abrego Garcia in Wilkinson’s history is his majority opinion upholding the U.S. government’s detention of Yaser Esam Hamdi, a U.S. citizen who was captured during the Afghanistan invasion and declared an “illegal enemy combatant.” The government initially held him at Guantanamo Bay and then transferred him to.a series of military jails in the U.S. once it was established he was a citizen, but still sought to hold him indefinitely without a court hearing or access to an attorney.
Wilkinson wrote both the opinion for the three-judge panel that rejected Hamdi’s petition for a writ of habeas corpus, and the majority opinion denying a hearing en banc. In that latter opinion, he emphatically voiced judicial deference for the executive branch’s “conduct of war” that is now echoed in the DOJ’s arguments that the courts should yield to the Trump administration’s deportation and imprisonment of Abrego Garcia and other immigrants under the wartime authority of the Alien Enemies Act (citations omitted):
Hamdi is being held according to the time-honored laws and customs of war. There is nothing illegal about that. The option to detain those captured in a zone of armed combat for the duration of hostilities belongs indisputably to the Commander in Chief. And the question is essentially whether the United States can capture and detain prisoners of war without subjecting the factual circumstances surrounding foreign battlefield seizures to extensive in-court review. The answer to this is now—and always has been—yes. In giving prisoners of war the right to litigate their detentions in American courts, the dissent would install a more restrictive regime on the executive branch after September 11 than existed before…
I suspect that in time, if the course of the dissent is followed, the norms of the criminal justice process would come to govern the review of battlefield detentions in federal court. The prospect of such extended litigation would operate to inhibit our armed forces in taking the steps they need to win a war. The specter of hindsight in the courtroom would haunt decision-making in the field. At a minimum, if rules are to be prescribed for litigating something as sensitive as the soundness of battlefield detentions in Article III courts, then the prescription should come from Congress or the Executive—the branches of government charged by our Constitution with the conduct of foreign war. I cannot conceive of the courts on their own motion—without the considered input of the political branches—devising a set of procedures allowing prisoners of war to hold American commanders accountable in federal court. If any illustration of the difficulties and hazards of such a judicial enterprise were needed, the history of Hamdi’s case should more than suffice…
My colleague also interprets a series of World War II-era Supreme Court cases as invitations for the judiciary to involve itself in an exacting review of decisions made on foreign battlefields. My colleague’s overreading of these decisions misses their fundamental import: they are replete with warnings that the judiciary must stay its hand when reviewing an exercise of the Commander–in–Chief powers during wartime…These cases are caution signals to the judiciary, not green lights.
Wilkinson added that he “seriously doubt[ed] that any mistake was made in Hamdi’s case,” and cited several Supreme Court opinions as holding that “war was a messy business, that mistakes could be made, but that close judicial review was nonetheless costly and constitutionally proscribed.”
The Supreme Court overturned Wilkinson’s decision in the 2004 case Hamdi v. Rumsfeld, ruling that the U.S. government had the power to detain Hamdi indefinitely as an “enemy combatant” but still had to grant him certain due process rights, including the right to contest the enemy combatant designation in an impartial forum. The decision was reached with a plurality of multiple concurring opinions; there was some disagreement over the federal law that authorized the enemy combatant status, habeas corpus, and other issues. Thomas wrote a dissent and was the only justice who would have entirely upheld the ruling from the Wilkinson and the rest of the Fourth Circuit majority.
In other words, Wilkinson took the hardline conservative position, granting the federal government expansive powers to designate someone an enemy combatant and then lock them up and throw away the key — essentially what President Donald Trump’s administration is attempting to do now to Abrego Garcia — and the Supreme Court emphatically rejected Wilkinson’s opinion, with only Clarence Thomas taking his side.
Timothy Sandefur, an attorney, vice president of the Goldwater Institute, adjunct at the Cato Institute, and contributor at a long list of conservative publications including Reason and National Review, reacted to Wilkinson’s ruling Thursday by highlighting the judge’s conservative bona fides.
“[T]here is not a judge on this PLANET who is less of a ‘judicial activist’ than J. Harvie Wilkinson,” tweeted Sandefur, calling him “the most outspoken proponent of ‘judicial restraint, let’s not legislate from the bench” in the federal judiciary. “To accuse him of being an ‘activist judge’ would be so utterly ridiculous that only this Administration could try.”
Considering Trump’s past record of attempting to besmirch judges who rule against him by accusing them of being swayed by liberal family members, it may be of note that the judge’s daughter Parker Wilkinson clerked for Justice Kavanaugh when he was on the appellate bench and then Chief Justice Roberts at the Supreme Court. Wilkinson’s son-in-law Jeff Wall served as acting Solicitor General of the U.S. and the Principal Deputy Solicitor General during Trump’s first term. Wall is currently a partner at Sullivan & Cromwell LLP, one of the law firms that agreed to change certain policies and provide millions of dollars of pro bono work to satisfy Trump’s demands.
Thursday’s ruling does not mention the Hamdi case by name, but the memory of being overturned by the nation’s highest court — on an arguably interwoven issue — may have been on Wilkinson’s mind when he wrote the seven-page opinion. He repeatedly voices support for the principle of allowing the executive branch expansive powers to manage immigration, terrorism, and foreign policy but nonetheless comes to the firm conclusion that the government’s actions here were far outside the constitutional boundaries.
The opinion begins by lambasting the DOJ’s motion as requesting relief that “is both extraordinary and premature,” adding that while he and his fellow judges “fully respect” the administration’s Article II powers, “we shall not micromanage the efforts of a fine district judge attempting to implement the Supreme Court’s recent decision.”
Wilkinson continued with an affirmation of due process rights even for illegal immigrants, gang members, or terrorists (citations omitted):
It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.
This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. Moreover, the government has conceded that Abrego Garcia was wrongly or “mistakenly” deported. Why then should it not make what was wrong, right?
Acknowledging the “guidepost” in the Supreme Court’s ruling required his court to give “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs,” Wilkinson wrote that “facilitation” of Abrego Garcia’s return would leave the Executive Branch with “options” for how that could be done.
“The Supreme Court’s decision does not, however,” the judge continued, “allow the government to do essentially nothing” (citations omitted):
It requires the government “to ‘facilitate’ Abrego Garcia’s release from custody in El Salvador and to ensure that his case is handled as it would have been had he not been improperly sent to El Salvador.” “Facilitate” is an active verb. It requires that steps be taken as the Supreme Court has made perfectly clear. The plain and active meaning of the word cannot be diluted by its constriction, as the government would have it, to a narrow term of art. We are not bound in this context by a definition crafted by an administrative agency and contained in a mere policy directive. Thus, the government’s argument that all it must do is “remove any domestic barriers to [Abrego Garcia’s] return” is not well taken in light of the Supreme Court’s command that the government facilitate Abrego Garcia’s release from custody in El Salvador.
“Facilitation” does not permit the admittedly erroneous deportation of an individual to the one country’s prisons that the withholding order forbids and, further, to do so in disregard of a court order that the government not so subtly spurns. “Facilitation” does not sanction the abrogation of habeas corpus through the transfer of custody to foreign detention centers in the manner attempted here. Allowing all this would “facilitate” foreign detention more than it would domestic return. It would reduce the rule of law to lawlessness and tarnish the very values for which Americans of diverse views and persuasions have always stood.
Wilkinson expounded further on the due process issues and the importance of protecting such rights for even an illegal immigrant or criminal, noting that the Trump administration “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?” he wrote. “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.”
The opinion also addressed the lack of “respect for the courts” by the White House and allies, “sadly illustrate[d]” by “calls for impeachment of judges for decisions the Executive disfavors and exhortations to disregard court orders.”
With the executive and judicial branches having now “come too close to grinding irrevocably against one another in a conflict that promises to diminish both,” Wilkinson assessed it as “a losing proposition all around” with the judiciary battling “constant intimations of its illegitimacy, to which by dent of custom and detachment we can only sparingly reply,” and the executive being yoked with “a public perception of its lawlessness and all of its attendant contagions.”
Wilkinson concluded with an optimistic note, writing that while the case presented “an incipient crisis,” it provided “an opportunity as well.”
“We yet cling to the hope that it is not naïve to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time,” he wrote, wrapping with the official denial of the DOJ’s motion.
