On Tuesday, July 30, the en banc Fifth Circuit vacated the preliminary injunction that Judge David Ezra had entered in the buoy case. (Ilya wrote about the case here.) To date, the Fifth Circuit has not yet issued the mandate in that case, which remains before the court of appeals. What has happened over the past eight days is weird–so strange that I worry about Judge Ezra. I will lay out the chronology as best as I can, and offer some commentary along the way. I apologize for the length of this post, but there is much ground to cover.
7/31/2024—Texas Files a Petition for Writ of Mandamus
The 5th Circuit’s en banc decision vacated Judge Ezra’s issuance of a preliminary injunction. But even if the PI is vacated, the case could still proceed to a trial on the merits. Remember, the “emergency” docket is just a prelude to a final judgment. Texas requested a jury trial. Judge Ezra ruled that this sort of case is not tried before a jury. And Judge Ezra had set a bench trial date of August 6. On July 31, 2024, the day after the en banc court ruled on the PI, Texas sought a petition for a writ of mandamus to postpone the pending trial so the court of appeals could resolve the jury trial issue:
Initially without reading—let alone ruling on—Texas’s motion to dismiss, and with full knowledge that this Court was debating what legal standard should govern, the district court set this case for trial on March 19 and then re-set it for August 6. When the district court finally did rule on that motion, Texas timely answered, invoking its right under the Seventh Amendment to a trial by jury. Late last week, less than two weeks before trial, the district court struck that demand. Texas now asks this Court to vindicate its Seventh Amendment rights by issuing a writ of mandamus.
Before the United States could even respond to the mandamus petition, Judge Ezra issued an “advisement” to an unknown “panel” of the Fifth Circuit.
8/1/2024—Judge Ezra’s First “Advisement”
On Thursday, August 1, 2024, Judge Ezra issued what he styled as an “Advisement to the Appropriate Panel of the United States Court of Appeals for the Fifth Circuit.” I’ve never seen such a document issued by the court. The closest I can think of is when a district court judge responds to a mandamus petition. I find that practice bizarre, but it happens. Here, Judge Ezra sua sponte issued this advisement, without even know what action, if any, the Fifth Circuit would take.
Judge Ezra wrote that he was “inclined to grant [Texas’s] Motion for Continuance so that the Fifth Circuit mandamus Panel may have sufficient time to address the merits of Texas’s petition for writ of mandamus with the input of the United States.” In a footnote, Judge Ezra referenced the possibility of the Fifth Circuit issuing an “administrative stay.” Then, the “Advisement” included an entire page of reasoning for why Texas might not be entitled to a jury trial. This document reads like a brief from a District Court judge to the Fifth Circuit.
8/1/2024—The First 28(j) Letter to the Fifth Circuit
That same day, Lanora Pettit, the Texas Principal Deputy Solicitor General submitted a 28(j) letter, apprising the Fifth Circuit of Judge Ezra’s “Advisement.” Pettit explained that the United States no longer opposed a motion to postpone the trial. But rather than granting that motion, the District Court scheduled a status conference on the day the trial was to begin. Pettit also points out that the “Advisement” offered new arguments that were “nowhere found in the court’s prior orders.”Again, the mandate had not issued by the en banc court, so the bouy case still remained on the Fifth Circuit’s docket. Pettit closed:
Because the district court refused to rule on the federal government’s unopposed motion for a continuance of next week’s trial and—in any event—has indicated that it still “expect[s] to begin trial on October 8, 2024,” Texas urges the Court to promptly issue an administrative stay of the trial and then a stay pending this Court’s consideration of Texas’s mandamus petition. These orders will remove any ambiguity regarding the pendency of next week’s bench trial and preserve this Court’s prerogative to set its own schedule to resolve Texas’s petition.
This letter would bother Judge Ezra.
8/2/2024—Judge Ezra’s Second “Advisement”
On Friday, August 2, Judge Ezra issued a “second advisement” to the “appropriate panel” of the Fifth Circuit. He provided notice that he granted Texas’s unopposed motion to continue the trial for ninety days. After this order, the Fifth Circuit denied Texas’s emergency petition as moot. But Texas’s mandamus petition on the jury trial issue was still pending.
8/2/2024—The Second 28(j) Letter to the Fifth Circuit
Principal Deputy SG Pettit submitted another 28(j) letter to the Fifth Circuit, noting that the District Court cannot set a 90 day “artificial deadline” for the court of appeals to resolve the mandamus petition:
As this Court rightly recognized in this afternoon’s order denying the emergency motions as moot, the district court’s sudden change does obviate the need to rule on Texas’s stay motion in an emergency posture. But for the reasons I explained yesterday, this Court should still stay the trial proceedings pending full consideration of the mandamus petition, rather than allow the district court to set artificial deadlines for this Court’s own deliberative process.
This letter would bother Judge Ezra even more.
8/6/2024—The First Status Conference
A lot happened on Tuesday, August 6. That morning, starting around 9 a.m., Judge Ezra held a status conference. From the outset, things were, to use the word of the zeitgeist, weird. Judge Ezra asked James Sullivan, Governor Abbott’s general counsel, to make an appearance, even though he was not seated at counsel table, and has not made an entry in this case. Ezra, talking to Sullivan, “And my buddy back there in the courtroom, good to see you. You want to make your appearance?” At various junctures, Judge Ezra would ask Sullivan, who again is not a lawyer in this case, to make arguments.
Judge Ezra then went on a lengthy discussion about how the en banc majority opinion may not be precedential. He went to painful ends to repeat over and over again that he had not yet made up his mind. But he was signaling as loud as he could how he was reading the en banc court’s majority opinion. Ezra referred to a statement made by Governor Abbott, who he described as a “very bright man.” Ezra then went on a long tangent about how four of his cases got to the Supreme Court, and he “did okay at the Supreme Court except in bump stock.” (Yes, I pointed those out here.) And he predicted the buoy case would “end up” before the Supreme Court. (It has already been to the shadow docket.)
Ezra didn’t understand why “Texas would actually want a jury in his case . . . unless it was just a way to delay the case.” Ezra seemed to cast doubt on Texas’s motivation, and said “a lot of people have been shaking their heads on that one.” Who these people are, Judge Ezra does not say (here at least). If Texas is correct, then it has a Seventh Amendment right to a jury. Judges usually don’t question why people seek to exercise their constitutional rights. Would Judge Ezra ask a criminal defendant why he sought to exercise his right to counsel?
Ezra then returned to the en banc vote, and referenced “chatter” from “law professors” and “judges.”
Yeah. I want to make it very clear that I am personally not saying there is a definitive split here. What I’m saying is that has—that is the chatter, okay? There are law professors and judges who have said that Judge Willett’s opinion is not precedential. Now, I’m not saying that. I want to make that very, very clear.
Later in the hearing, he referred to “voices” who were talking about the case.
Huh? Is Judge Ezra merely being a passive vessel, reading what law professors are writing? He obviously reads this blog, which is why he felt compelled to email me about my post. If any judge tells you they do not read the press, they are not telling you the truth. Judges get to their positions by profoundly caring what people write about them, and they consistently act accordingly.
I have not read all of the blog commentary on the en banc decision, but I have yet to see anything questioning whether Judge Willett’s opinion is precedential. Please email me if I’ve missed anything. Again, I found it unexpected that Judge Ezra had contacted me about one of my posts. Perhaps he has communications with other law professors about the case? I don’t know. Ezra also references other judges. But who are these judges? Is he talking about this pending case with other judges? The answer is yes, apparently, which he would make clear at the August 7 hearing.
Judge Ezra then faulted Texas for asking the Fifth Circuit to rule on a motion by a particular time.
And I don’t want to put you in the same kind of squeeze play the State likes to put me in. By the way, I think that’s a bad practice. If I were you, I would not continue—I would talk to whoever is in charge of that and not do these letters to the judge saying, if you don’t rule by tomorrow at I’m doing this. It kind of sounds like a threat, and federal judges don’t do threats well. I think it’s not a good idea to do that. have never in my entire 35, almost 36 years, on the bench had it done to me, except by the State of Texas twice now
The United States Solicitor General does this quite often–it announces that if a lower court does not rule on a motion by a certain date, it will go to the Supreme Court for emergency relief. The transcript went on to discuss some other matters.
Onto the next item.
8/6/2024—The Order for Further Status Conference
After the August 6 hearing concluded, the court ordered another status conference for August 7. And Judge Ezra made a particular request:
It is requested that Lanora C. Pettit, Principle Deputy Solicitor General be present at the scheduled conference.
The Principal Deputy SG had not made an appearance in Judge Ezra’s court. Like in the federal system, SG lawyers generally appear in appellate matters. Judge Ezra did not say why Pettit had to appear before him. But the Court did not request that lawyer from DOJ should appear:
In the event that lead counsel for the United States have returned to Washington DC, it is acceptable that a local representative from the United States Attorneys Office be present.
8/6/2024—The Third 28(j) Letter to the Fifth Circuit
Later in the day on August 6, Pettit submitted another 28(j) letter to the Fifth Circuit to “notify the Court of developments during today’s status conference of which the Court may wish to be aware before it issues its forthcoming mandate.” Here is Pettit’s summary of the proceeding:
Without prompting from either party, the district court raised the possibility that Judge Willett’s opinion for the en banc Court “might not be precedential,” based on unspecified “voices” and “chatter” the district court had either heard or read from ex parte sources who suggested that the opinion was “not entirely clear.” Although undersigned was not present, the district court reportedly opined that “[w]e have a 9-9 split” because Chief Judge Richman “did not agree with the majority,” and the separate opinion by Judge Ho “did not say anything at all.”
Accordingly, the district court ordered the parties to file additional briefs no later than September 20, 2024, addressing the impact of this Court’s en banc decision. In the process, the district court provided citations to decisions that neither party had previously raised, and which he suggested either party might consider citing in support of an argument that the district court need not follow Judge Willett’s opinion in this case.
Again, the Fifth Circuit had not yet issued its mandate. My understanding is that any one judge on the court can withhold the mandate. And, as should be clear in this post, there may be very good reason why the Fifth Circuit would give some more thought before returning this case to Judge Ezra.
This letter would really, really bother Judge Ezra.
8/7/2024—The Second Status Conference
On Wednesday, August 7, Judge Ezra held a status conference that lasted about an hour. This hearing transcript, is unlike any other I’ve ever reviewed. It must have been even weirder in person.
To be clear, Lanora Pettit was not counsel in this matter before the District Court. Judge Ezra did not indicate why he was requesting her presence. When I reviewed the order on August 6, I wondered if he would hold Pettit in contempt of court. Reasonably, Pettit brought counsel to represent her: Joseph Mazzara, a special counsel to the Attorney General. I always tell my students that the most important rule of lawyer is that the lawyer should never go to jail. And Mazzara was there to represent Pettit’s personal interests.
At the outset of the hearing, Judge Ezra opined, “I had invited, but had not ordered, Ms. Pettit to be here. Is she here today?” Mazzara spoke up. “Yes, Your Honor. She’s here, and I’m representing her. I’m her counsel, Joseph Mazzara, for the purposes of this hearing today.” Judge Ezra responded, and asked if Mazzara was licensed in the Western District of Texas. He was not. Ezra said, “Now, if you’re not licensed, technically, you cannot argue.” Mazzara replied that given the compressed timeline, “putting in a pro hac vice application didn’t seem to be feasible.”
In a normal courtroom, a judge in an emergency posture could have sua sponte granted a pro hac vice application. In the 3D-printed gun litigation, where I had to defend against several emergency TROs in many courts where I was not admitted, including the Essex County Chancery Court, every judge readily granted my ability to argue without filing the necessary paperwork. But Judge Ezra took the other path.
Judge Ezra said he would not sanction Pettit:
I am not sanctioning Ms. Pettit. I am not mad at Ms. Pettit. I am not going to be criticizing Ms. Pettit personally. I am concerned about the filing that was made, and I’m going to be questioning her about that filing. But I am not in any way, shape, or form going to be doing anything to her that she would require an attorney.
Mazzara explained that Pettit did need an attorney because the judge would be “questioning her.” Judge Ezra said she did make an appearance in this case. Mazzara corrected him, she made an appearance “In the appellate court.” Judge Ezra replied:
It doesn’t matter. We are one federal court, sir.
Ummmmm, no. There is not “one federal court.” Some inferior courts are more inferior than others. And as a practical matter, a lawyer admitted in the Western District of Texas bar is not admitted to the Fifth Circuit bar, and vice versa. Judge Ezra had just finished beating up Mazzara on the fact that he was not admitted to WDTX.
Judge Ezra then asked Pettit to “come forward.” Mazzara asked if he was “asking her to appear as a witness.” Judge Ezra replied:
I’m not asking her to appear as a witness. She wrote a letter which addressed my comments in this court, and I’m trying to find out the basis for what she said, number one.
I have no idea what this statement means. Pettit is clearly a fact witness. She is not a lawyer before this court. But worse still, Judge Ezra is asking about material that is pretty clearly privileged. Another attorney for the AG’s office pointed out the obvious:
I’m sure the Court understands that we—no one here will be able to talk about any of the internal deliberations within the Attorney General’s Office or with our clients about the motivation or decisions to file this letter to the Fifth Circuit.
Mazzara added that “any questions regarding the letter would fall under any number of privileges.” Ezra disagreed, and said the letter was “publicly filed.” Mazzara tried one more time:
MR. MAZZARA: Not the letter. It’s not the words, the text of the letter itself, but any mental impressions she had or any thought she had that went into —
Judge Ezra interrupted Mazzara mid-sentence, and told him to sit down:
THE COURT: I have every right and obligation to address the matters that are in the letter, so you may be seated, sir.
Judge Ezra then goes through, line-by-line, the August 6 28(j) letter. In the process, he makes another clear error of law. Judge Ezra said the “case is essentially closed.” Pettit replied that the “opinion had been issued but not the mandate.” After some back-and-forth, Judge Ezra said the “only issue” pending before the Fifth Circuit was the mandamus petition over the jury trial.” The following exchange should make every federal courts student in the country cringe:
MS. PETTIT: Respectfully, Your Honor, the mandate has not issued in the primary case.
THE COURT: It doesn’t matter whether the mandate has issued or not.
MS. PETTIT: The Court retains jurisdiction until the mandate does.
THE COURT: It doesn’t matter. There’s no litigation going on.
Judge Ezra is so, so very wrong. Until the mandate issues, nothing has changed. Courts write opinions, but speak in judgments. Tomorrow, the Fifth Circuit could issue a modified en banc opinion, and that would be procedurally proper. At one point, Judge Ezra name-checked his law clerk. (I can only recall one other instance where a judge referenced his law clerk in a judicial proceeding.) He should check the clerk’s copy of Hart & Wechsler. Or he can check with Judge Chutkun, who sat on her hands until the Supreme Court mandate issued, and then moved into swift action. (SCOTUS did not issue the mandate in the immunity case “forthwith,” thereby making it even more difficult for a pre-election trial to occur. Judge Chutkun, like Judge Ezra, is quite eager to bring a case to trial as soon as possible.
Judge Ezra continues to grill Pettit. He describes her as “kind of a volunteer” who wrote this letter without any attachment to his case. Mazzara stands up, and Judge Ezra barks at him, “No. Sit down. No, sir. Not yet.” Mazzara lodged an “objection to this line of questioning.” Judge Ezra then threatened to remove Pettit’s counsel from the court:
THE COURT: Counsel, listen. If you don’t listen to me, I’m going to have to ask you to step outside. I told you I would give you plenty of opportunity to address the court, and you will have that opportunity and I respect your opportunity to do so. But I can’t have you jumping up like a jack-in-the-box every two minutes. You’re not even a member of this court. You’re lucky that I’m even letting you say anything here.
Wow. This passage will be reviewed in some future judicial misconduct proceeding.
Things get weirder. Judge Ezra continues to parse through the 28(j) letter. He addresses the “chatter” and “Ex parte sources.”
First of all, you make a big deal out of the fact that, without prompting from either party, the District Court raised the possibility that Judge Willett’s opinion from the en banc court might not be precedential based on unspecified voices and chatter 4 the District Court had heard or read from ex parte sources who suggested that the opinion was not entirely clear. That is absolutely true. That is true. I will agree with you. I did raise it. The implication here is that the court did so for the purpose of attempting to encourage or announce its belief that Judge Willett’s opinion was not precedential or that I did not have the authority or the right to raise it ex parte.
I’m not entirely sure what Judge Ezra admits is “absolutely” true. Did he in fact have ex parte conversations about the case?
Judge Ezra also speculates that it was Texas’s “intent” to influence Judge Ho:
But there is an issue, and that issue needs to be briefed. Here’s the reason: This case is not going to end with the Fifth Circuit. If by sending this letter it was your intent to alert Judge Ho that he had not written on this issue and to try to get him to amend his opinion, that might work. I don’t know. It wouldn’t look good, but it might work. . . .This is an argument trying to get the Fifth Circuit, either Judge Willett to rewrite his opinion or to get Judge Ho to change his opinion or to get judge—Chief Judge Richman to somehow change her opinion. That’s what—I mean, it’s pretty obvious. . . .
What I do know is that Judge Ho did not opine at all on the issue. He took a totally different tack. He felt that the case should be dismissed out of hand for jurisdictional reasons. So he partially dissented, actually. And we do know that Chief Judge Richman did not agree with the majority, in part. She joined in judgment, but she did not agree with the majority’s reasoning that the way you—on the way that you judge navigation, which was a hallmark of Judge Willett’s opinion. We know she didn’t agree with that. So that leaves—that leaves us with some uncertainty.
…
But my concern is this. My concern is this: Somebody—and I don’t think it’s really Ms. Pettit. But somebody seems to think that by sending a letter like this in to the Fifth Circuit, they are in a position to influence the Fifth Circuit to do something they might not otherwise do. Why else would the letter be sent?
Let me unpack what is going on here. Judge Ho found that the Invasion Clause presents a political question, so the court lacks jurisdiction. He did not join Judge Willett’s majority opinion on the statutory issue. I think Judge Ezra is worried that Judge Ho might amend his opinion to explain that, assuming the court had jurisdiction, he agrees with the majority’s statutory analysis. Ezra said as much:
But there is an issue. We have a deeply divided opinion. And it is in Judge—and it’s a fact that Judge Ho did not weigh in on this issue. Maybe he will now. Maybe he’ll file some sort of an amended opinion now that he’s gotten your letter. I don’t know. But he could do that at any time. Maybe that was the purpose of it. I don’t know. I hope not. Or maybe Judge Willett will file—I have no idea.
Such an amended opinion would then create a clear and unmistakeable majority opinion that does not turn on the scope of Chief Judge Richman’s concurrence. Judge Ezra would mention Judge Ho several other times. Judge Ezra has some weird fixation on Judge Ho. But he went out of his way to explain how he is friends with other Fifth Circuit judges. But not with Judge Ho.
I love the State of Texas, actually. I didn’t have to become a member of the Texas Bar, but I did. Why? Because I’m proud to be a member of the Texas Bar. That’s why. And my good friend, the Chief Justice, swore me in his office. And I’m very proud of that, too. . . . Look. I am very good friends with many of the those judges. I don’t know all of them well, but I know most of them. And I have a wonderful relationship with—even like Judge Willett and I have a good relationship. He’s a great judge. Judge Elrod and I are very good friends, very good friends. Judge—Chief Judge Richman and I are very good friends. Judge Oldham and I are friends
For those who may not know, Chief Justice Nathan Hecht is married to Chief Judge Richman. Ezra stated further that he has a connection with Judges Willett and Elrod because of Baylor football:
They go to Baylor games like me. Judge Willett’s a big Baylor fan, as is Judge Elrod and I. That’s our connection. And Judge Richman, by the way, Chief Judge Richman.
And Judge Ezra repeated for the umpteenth time that he was appointed by President Reagan.
And President Ronald Reagan wasn’t known for appointing left-wing radical jurists, and I don’t think I’ve ever proven to be one
He made the same point to me in our email exchange. Ezra was appointed to the District of Hawaii in 1988. That year, Hawaii had two democratic senators, Spark Matsunaga and Daniel Inouye. At that time, both Senators retained a blue slip. President Reagan was extremely deferential on district court nominees in states with two democratic senators. Remember George H.W. Bush nominated Sonia Sotomayor to the District Court and David Souter to the Supreme Court. Reagan’s nomination of Judge Ezra says nothing at all about his conservative bona fides. And, if I had to pick a bone, many of Reagan’s circuit nominees left a lot to be desired.
Judge Ezra also made a bizarre comment about people thinking that Texas has the Fifth Circuit “in their back pocket.”
You know, I’ll tell you what the worst part of this is. And I don’t think it’s true. I really don’t think it’s true. It could leave somebody with the impression that the State of Texas thinks they’ve got the Fifth Circuit in their back pocket. Now, I don’t think you believe that. I really don’t think the Attorney General’s Office believes that they have the State of Texas in their back pocket and they can just file anything they want, prejudice the Court against this Court, and get a successful ruling. I do not believe the Attorney General’s Office believes that. If I did, you would know it.
MS. PETTIT: Your Honor, for the record, we definitely do not.
THE COURT: You don’t have to tell me that. I already said I don’t believe that you do. But somebody who just read this and would say why did they send this in? What was purpose of it? What is the big, important issue here? I don’t know. I don’t know why it was sent in. It was ill-advised.
Tell me how you really feel, David Ezra.
Judge Ezra apparently is talking about this case with other judges–”conservative” ones at that! And he heard some more “chatter.”
And maybe I’m just naive. No judge that I’ve raised this with and talked to about this, just asked them if this is a policy or if they’ve ever seen it, nobody had ever seen it. And we’re talking about conservative judges now that I talked to. Nobody had ever seen it or heard of it. . . . But then I heard some chatter.
To date, Texas has not made a motion to remove Judge Ezra from the case. Yet Judge Ezra is clearly thinking about the issue and brought it up himself:
It appears the State of Texas has some idea in its head—from where, I don’t know—that I am not the right judge for this case because I’ve already made up my mind. I haven’t. Or that I am prejudiced against the State of Texas. I am not. . . . In my entire career as a federal judge, all the cases I’ve handled, all the circuits that have heard my appeals, I have never to my knowledge been removed—or my recollection—from a case for bias or for any other reason.
There is a first time for everything.
At the end of the hearing, Judge Ezra reached out to talk to a reporter from the Austin American Statesman, who made an appearance!
All right. Again, I want to thank all of you for being here. And, by the way, if you don’t think—this is the really odd part of it. There’s a reporter for The Statesman who I’ve never personally met, who happens to be an excellent reporter. What is his name again? He’s already got an article out on this. . . .Is it Jeremy?
THE CLERK: I don’t think so. I don’t have Internet.
THE COURT: What is his name? Are you out here? What is your name, sir.
MR. MORITZ: Your Honor, I’m John Moritz with the Austin American-Statesman.
THE COURT: There you go. Mr. Moritz. Mr. Moritz is an excellent reporter. I read his articles many times. He generally gets it absolutely right, which is not something that happens often. And he’s already written an article on this, and he has brought out the facts in that article. Do you think that these Fifth Circuit judges live in some sort of a bubble and they don’t read the newspaper? They do. We don’t all live in a bubble. They read the newspapers.
Ezra said that Mortiz would write an article today about the hearing:
Okay. And he’ll write another article today maybe. I don’t know. But he is a good reporter.
Moritz did, and mentioned absolutely none of this worrying conduct.
***
There are radical federal judges in Texas, but they are not Matthew Kacsmaryk and Reed O’Connor. They are Judge David Ezra, and I would add, Judge Janice Jack, who should be removed from her absolute control of the Texas foster care system. These judges behave as interested parties in the case, and cannot even see how out-of-bounds they are. It is a problem. I still believe the judiciary can regulate itself, but there is some room for introspection here.
