After President Donald Trump asked Department of Justice (DOJ) lawyers to find a path forward to add a citizenship question to the 2020 Census, DOJ decided to swap out the lawyers handling the case. A Barack Obama-appointed U.S. District judge who blocked the citizenship question in the first place–and was vindicated by the U.S. Supreme Court–denied a motion to withdraw on Tuesday, issuing what’s already been dubbed a “scorching” response.
Judge Jesse Furman of the U.S. District Court for the Southern District of New York noted up front that when a judge considers whether to grant motions to withdraw, they must drill down on two factors: “the reasons for withdrawal and the impact of the withdrawal on the timing of the proceeding.”
Furman said that, “[m]easured against those standards,” the DOJ’s motion to withdraw is “patently deficient (except as to Brett Shumate and Alice LaCour, who have left the Department of Justice and the Civil Division, respectively).” Furman said that the DOJ did not provide “reasons, let alone ‘satisfactory reasons'” for the shake-up. Furman wasn’t buying the assertion made by DOJ that the swapping out of lawyers would not cause “any disruption.”
Furman also said that, by the DOJ’s own arguments, the clock is ticking on the census dispute.
“As this Court observed many months ago, this case has been litigated on the premise — based ‘in no small part’ on Defendants’ own ‘insist[ence]’ — that the speedy resolution of Plaintiffs’ claims is a matter of great private and public importance,” the judge said. “If anything, that urgency — and the need for efficient judicial proceedings — has only grown since that time.”
The DOJ is currently looking to come up with a “new rationale” for adding the question to the census. The Supreme Court agreed in June that the rationale the Commerce Department offered–that the question was needed to enforce the Voting Rights Act–seemed “contrived.”
Altogether, the evidence tells a story that does not match the [Commerce] Secretary’s explanation for his decision. Unlike a typical case in which an agency may have both stated and unstated reasons for a decision, here the VRA [Voting Rights Act] enforcement rationale—the sole stated reason—seems to have been contrived. The reasoned explanation requirement of administrative law is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. The explanation provided here was more of a distraction. In these unusual circumstances, the District Court was warranted in remanding to the agency.
While the question wasn’t deemed unconstitutional, SCOTUS did say Commerce had to go back to the drawing board and provide a new rationale for adding the question to the census.
Judge Furman previously blocked the addition of the citizenship question to the census, calling it “arbitrary and capricious.” Furman was also clearly paying attention last week when President Trump went on Twitter and said the news his administration was caving on the citizenship question issue was “fake.”
Furman denied the motion to withdraw for nine of the 11 named attorneys on Tuesday without prejudice, meaning DOJ can try again. The only exceptions were for aforementioned attorneys Shumate and LaCour. That was not all:
Any new motions to withdraw shall be supported by a signed and sworn affidavit from each counsel seeking to withdraw (1) stating “satisfactory reasons” for withdrawing at this stage of the litigation and (2) in light of Plaintiffs’ forthcoming motion for sanctions, see Docket No. 616, at 4 n.2, confirming that (a) he or she submits to the jurisdiction of this Court with respect to that motion and any future motions (or orders to show cause) regarding sanctions and (b) he or she will be available in the event that the Court requires his or her attendance at any future hearings regarding such motions or orders. In the event any new motion is filed, new counsel for Defendants shall also file an affidavit providing unequivocal assurances that the substitution of counsel will not delay further litigation of this case (or any future related case).
The reaction to this news was rapid.
1. Not Normal
2. Notably Angry Even For A Federal Judge
3. Professionally Humiliating
4. Not A Good Sign For the Government's Casehttps://t.co/kSAEgFXnBc
— RammedTheRampartsHat (@Popehat) July 9, 2019
First rule of litigation: Don’t piss off the judge.
Second rule of litigation: See the first rule. https://t.co/kokvfVFhA4
— Steve Vladeck (@steve_vladeck) July 9, 2019
SDNY: In the legal tangle otherwise known as the census litigation, USDJ Jesse Furman refuses to let a team of 11 DoJ lawyers withdraw and be replaced en masse in the wake of Trump’s order to keep fighting after a SCOTUS loss. pic.twitter.com/aanN5fPWpR
— John Riley (@jriley8832) July 9, 2019
In a scathing order, the judge overseeing the census citizenship case in New York WILL NOT let most of the lawyers the DOJ sought to replace in the case withdraw — at least for now — because the DOJ's motion to do so was "patently deficient" https://t.co/O0KkrFcq1s
— Tierney Sneed (@Tierney_Megan) July 9, 2019
As I noted, withdrawal isnt automatic. Judge is demanding reasons for why DOJ lawyers want out of census case. https://t.co/tERyQ9LC3p
— Ross Garber (@rossgarber) July 9, 2019
This gives the judge the ability to hold those lawyers accountable for the positions that the Justice Department takes in the census case. If they are in the case, and they contradict what they told the judge previously, he could hold them in contempt. https://t.co/czH985UU6j
— Renato Mariotti (@renato_mariotti) July 9, 2019
I should’ve trademarked that before tweeting it.
— Elie Honig (@eliehonig) July 9, 2019
Wow. Judge Furman isn't letting DOJ lawyers out of the Census case without each lawyer filing a signed and sworn affidavit giving good reasons for withdrawing and promising to remain available to the court. https://t.co/AmiDcv9hf6 pic.twitter.com/BzJ2TLYaaW
— Sasha Samberg-Champion (@ssamcham) July 9, 2019
Great move by the judge. https://t.co/LO8Vx9yLH0
— Randall Eliason (@RDEliason) July 9, 2019
You can read the full filing below.
[Image via YouTube screengrab]