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The Department of Justice Accuses Judge of Misconduct in Transgender Military Ban Case (A Deep Dive) – Twitchy

February 22, 2025
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The Department of Justice Accuses Judge of Misconduct in Transgender Military Ban Case (A Deep Dive) – Twitchy
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We will start off by being honest with y’all. It is hard to keep track of the absolute hurricane of litigation that has been going on since Trump took office. Perhaps someone has managed to keep track of every single case, but we doubt it.





But one of the many, many cases is Nicolas Talbott, et al. v. Donald J. Trump, et al. which challenges Trump’s executive order regarding transgender servicemembers in the military. You can read it, here:

And we will talk about the merits of this case a little more in a minute, but there was a preliminary injunction hearing on Tuesday and Wednesday and it went badly enough for the Trump administration that observers that we respect said that they believed the injunction would be granted.

In fact, it went so badly for the government that the government alleged that the judge engaged in misconduct, filing a complaint with the Chief Judge of District of Columbia District Court:

The cut off text says:

BREAKING: DOJ says the judge handling Talbott v. Trump, a case dealing with Trump’s EO on trans-identifying service members, “engaged in hostile and egregious misconduct” towards its attorneys – suggesting bias + disrespect towards the DOJ position/ imperiling a fair weighing of their case.

As for the document itself, if you don’t want to squint, we posted a link to a pdf copy of it, here:

From the complaint:

During these hearings, Judge Reyes engaged in hostile and egregious misconduct that violates Canons 2A and 3A(3) of the Code of Conduct for United States Judges, which require judges to ‘act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary’ and ‘be patient, dignified, respectful, and courteous to litigants.’ The transcript reveals multiple instances where Judge Reyes’ misconduct compromised the dignity of the proceedings and demonstrated potential bias, raising serious concerns about her ability to preside impartially in this matter.

It goes on to detail two exchanges during the oral argument. This was after Judge Reyes claimed that there were an unknown number of genders and Trump was ‘literally erasing transgender people’—which is obviously a lunatic claim. For instance, this author has three learning disabilities. If someone else says that this author is faking it or the condition isn’t real that person would be wrong, but this author wouldn’t be ‘erased’ by such statements—literally or figuratively. We would just be having a disagreement.

But that isn’t the crux of the complaint. The crux of the complaint deals with two incidents. First, apparently the judge decided that it was appropriate to rule on the correct interpretation of the Bible:

Judge Reyes describes receiving an email suggesting that she develop a relationship with Jesus. She then uses this aside as an excuse to randomly pivot to questioning the DOJ attorney about his religious views: ‘What do you think Jesus would say to telling a group of people that they are so worthless, so worthless that we’re not going to allow them into homeless shelters? Do you think Jesus would be, ‘Sounds right to me’? Or do you think Jesus would say, ‘WTF? Of course, let them in.?’ This line of questioning is deeply problematic for several reasons. First, the question has no relevance to the legal analysis of military policy. Second, it placed DOJ counsel in an untenable position of either appearing unresponsive or speculating about how an incoherent hypothetical aligns with Judge Reyes’ personal religious beliefs. Counsel, however, did not fall into that trap, but instead provided a professional response that highlights the impropriety of the question itself: ‘The United States is not going to speculate about what Jesus would have to say about anything.’ Third, sporadic use of the inappropriate abbreviation ‘WTF’ during the questioning of an attorney on his religious beliefs sheds light on the severity of the judge’s lack of professional decorum. 

Recommended

We’re sure all the leftists screeching that America is turning into a theocracy will now call for judge Reyes’ impeachment, right? Right?!

Yeah, we ain’t holding our breath.

Look the reality is that American law has always been influenced by faith. We declared our independence from England citing rights endowed to us by our creator. The First Amendment’s religion clauses were motivated in no small part by the religious belief that coercing religious expression or banning it was itself a sacrilege. They believed, as Roger Williams did, that ‘forced worship stinks in God’s nostrils.’ Likewise, during the Civil War we liberated slaves while singing ‘The Battle Hymn of the Republic’ which included lyrics such as 

As He died to make men holy, let us die to make men free,

While God is marching on.

The hatred of slavery expressed in the Thirteenth Amendment found its roots in the Book of Exodus which abolitionists read as a polemic against all human slavery, while the Fourteenth and Fifteenth Amendments were significantly motivated by the principle that one should do onto others as you would have done to you. Likewise, when President Kennedy was advocating for what became the Civil Rights Act of 1964 and President Johnson was advocating for what became the Voting Rights Act of 1965, both presidents explicitly cited the Bible to support their arguments.

Indeed, even the power that this court is asked to invoke—the power to grant injunctions—has its roots in the courts of the Church of England. Originally, you would go to these church courts and ask them to order people to do specific things, or not to do specific things, and the church courts would say, in essence, ‘listen to our orders or you will go to hell.’ Over time that morphed into ‘listen to our orders or we will lock you in jail until you comply’ and by the time of the founding, these courts were much more formalized as part of the government. That approach was adopted in the fledgling governments of the United States so that ordinary courts exercised these powers, independent of any church.

So, it is absolutely appropriate to say that our laws and even our legal system has been influenced by faith. But it has never been appropriate to say ‘the Bible is the law’ or that the teachings of any figure, even the man this author considers to be his Lord and savior, has the force of law. Indeed, it would violate the First Amendment as tending to establish a religion if a court got into business of deciding definitively what a religious text meant, or how a religious figure would handle a specific question.

And that doesn’t even get into particularly thorny questions such as whether the lawyer being asked these questions was a Christian, or even believed Jesus was a real, historical figure. It’s another reason why a judge shouldn’t be giving any lawyer a quiz on the Bible, and doubly so when we are talking about a government lawyer.

So that was one incident. The other involved trying to turn the government’s lawyer into the judge’s prop:

Unfortunately, Judge Reyes’ misconduct was not isolated to a single incident. The transcript also reveals that Judge Reyes attempted to embarrass counsel by physically directing him as part of a rhetorical exercise in front of other attorneys, court personnel, and members of the public and press. During an exchange about discrimination, Judge Reyes abruptly instructs DOJ counsel: ‘I made a change to my standing order when I was in the back. My new standing order says that no one who has graduated from [the University of Virginia] Law School can appear before me. So, I need you to sit down, please. I need you to sit down.’ When counsel complied with this directive, the judge continued her hypothetical about UVA law graduates being banned from her courtroom because ‘they’re all liars and lack integrity.’ Only after Judge Reyes used counsel as a physical prop did she instruct him to come back up to continue the proceedings. This directive served no legitimate judicial purpose and transformed an attorney appearing before the court into an unwilling participant in the judge’s unnecessary demonstration.





We think this was the judge trying to scold and embarrass the government’s lawyer for having the temerity to defend the view of sex and gender everyone had until about a decade ago, trying to say to the lawyer, in essence, ‘how do you feel now I am treating you like a transgender person?’ The letter argues that this is a breach of decorum and we tend to agree and we do think it calls into question her impartiality because she seems so wild-eyed in her opposition to the government’s position. The letter essentially asks for the court to make sure this doesn’t happen again, and investigate to see if further discipline is necessary. We are not sure the request will get very far in the District of Columbia, but you never know. We might be pleasantly surprised.

Still, we have little doubt that Chief Judge Srinivasan will probably go into Judge Reyes’ office and say ‘what the hell is wrong with you?’ and tell her to knock that kind of behavior off. The sin Judge Reyes has committed isn’t her obvious bias but acting like such a clown in the process.

As for the merits, if we were sitting in this case, we would immediately bring up Goldman v. Weinberger, 475 U.S. 503 (1986). That case involved a Jewish servicemember who wanted to wear a yarmulke on duty, but it was apparently against regulations to wear any kind of headgear while indoors, and it was against Goldman’s faith not to wear his yarmulke all the time. 

And guess what? Goldman lost.

Mind you, as we understand it, Congress stepped in afterward and passed a law allowing for Jews to wear yarmulkes and providing similar religious accommodations for other faiths but we are focusing on what the Supreme Court said that the Constitution required—and in that case, the Constitution required the military to engage in absolutely no accommodation of Mr. Goldman’s religious beliefs. And we can assure you that if Mr. Goldman was a teacher or a clerk in a social security office, the decision would have gone the other way. But this was the military we were talking about and it is almost impossible to get the Supreme Court to second guess the military.

And the facts in the case were incredibly sympathetic. There was no war going on and Mr. Goldman wasn’t the kind of personnel to be called to the front lines. He was a clinical psychologist at the mental health clinic at March Air Force Base in Riverside, California. So he wasn’t even part of emergency medicine like you might see on an episode of MASH or even ER. And the way this became a problem was particularly nasty:

Until 1981, petitioner was not prevented from wearing his yarmulke on the base. He avoided controversy by remaining close to his duty station in the health clinic and by wearing his service cap over the yarmulke when out of doors. But in April 1981, after he testified as a defense witness at a court-martial wearing his yarmulke but not his service cap, opposing counsel lodged a complaint with Colonel Joseph Gregory, the Hospital Commander, arguing that petitioner’s practice of wearing his yarmulke was a violation of Air Force Regulation (AFR) 35-10.

In other words, Goldman testified for the defense in a Court-martial and some prosecutor was so offended that he reported him for wearing a yarmulke. Naturally, the whole thing smacks of retaliation by the prosecution for gumming up their prosecution.

Look, this writer is a lifelong civilian so maybe we are missing something, but it is really hard to see how his wearing a simple, conservative yarmulke would be a problem. Maybe if he was in a war zone, or maybe if he was involved in emergency care, that would matter because it means he would have one more thing to fuss with in an urgent or emergency situation. But the Supreme Court still didn’t find in his favor, explicitly saying that this was because it was the military they were talking about, and their reasoning is worth quoting at length:





Our review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society. The military need not encourage debate or tolerate protest to the extent that such tolerance is required of the civilian state by the First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps. … The essence of military service ‘is the subordination of the desires and interests of the individual to the needs of the service.’

These aspects of military life do not, of course, render entirely nugatory in the military context the guarantees of the First Amendment.  .. But ‘within the military community there is simply not the same [individual] autonomy as there is in the larger civilian community.’ … In the context of the present case, when evaluating whether military needs justify a particular restriction on religiously motivated conduct, courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest. … Not only are courts ‘ `ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have,’‘ … but the military authorities have been charged by the Executive and Legislative Branches with carrying out our Nation’s military policy. ‘[J]udicial deference . . . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged.’

The considered professional judgment of the Air Force is that the traditional outfitting of personnel in standardized uniforms encourages the subordination of personal preferences and identities in favor of the overall group mission. Uniforms encourage a sense of hierarchical unity by tending to eliminate outward individual distinctions except for those of rank.

(Citations omitted.) In other words, the military is not a place for a person who sees themselves as a special snowflake, different from everyone else, who needs to express their individuality. It is a place to subordinate one’s personal identity to the unity of the military and its hierarchy. And while that case doesn’t directly address someone claiming that they are one of dozens of alleged gender identities (in part because this really wasn’t on anyone’s radar in the 1980’s), the logic applies to that situation as well.

So, a Jew has no right to wear a yarmulke in the military, even though the First Amendment specifically protects freedom of religion. But this judge wants to pretend that the Constitution gives a man a right to pretend he is a woman?

Of course, that is getting at one issue when determining whether or not a preliminary injunction should be granted. Courts must consider four factors before granting a preliminary injunction:

1) whether the petitioner will be irreparably harmed if the injunction does not issue;

2) the balance of harms between the petitioner and the respondent,

3) whether the petitioner is likely to prevail on the merits, and

4) whether the public interest will be served by the injunction.

To be blunt, the second and fourth factors are famously mushy but the first and third are absolute necessities. Our discussion of the Goldman case gets at the third issue. The petitioners is not likely to prevail on the merits—or at least they wouldn’t be if the judge faithfully followed the law.

But the other problem is irreparable harm. The first problem involves that executive order. If you actually read it, it doesn’t do very much, yet. It does affirmatively say that

Absent extraordinary operational necessity, the Armed Forces shall neither allow males to use or share sleeping, changing, or bathing facilities designated for females, nor allow females to use or share sleeping, changing, or bathing facilities designated for males.





It also describes the overall policy of this administration as follows:

Consistent with the military mission and longstanding DoD policy, expressing a false ‘gender identity’ divergent from an individual’s sex cannot satisfy the rigorous standards necessary for military service.  Beyond the hormonal and surgical medical interventions involved, adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life.  A man’s assertion that he is a woman, and his requirement that others honor this falsehood, is not consistent with the humility and selflessness required of a service member.

But what does that mean in practice? Does that mean that everyone who claims to be transgender will be thrown out of the military and new recruits are going to be barred? The executive order doesn’t say anything specific on the topic. As stated in the judicial complaint letter:

The Military EO does not require the discharge of service members, but instead gives the Secretary of Defense 60 days to amend the medical standards for accession and retention for the armed forces. 

So maybe in 60 days the Secretary of Defense is going to declare it is time to throw transgender people out of the military. It frankly wouldn’t surprise us if that is what they did. But the courts are not supposed to be involved in any kind of guessing games about what the executive might do. They have to deal with concrete proof of what they actually plan to do. So what actual harm are the plaintiffs facing for sure?

And this is a serious problem when you consider what the plaintiffs asked for when filing suit. Toward the end of the document initiating suit, tell the court what they want, in part:

Plaintiffs ask the Court to grant the following relief:

140. Issue a declaratory judgment that the President’s categorical exclusion of transgender people from military service is unconstitutional;

141. Issue a preliminary and permanent injunction prohibiting the categorical exclusion of transgender people from military service;

The other requests amount to demanding that no action is taken to exclude the specific plaintiffs in this case.

So, they are not complaining about sex segregation in facilities, they are only saying they shouldn’t be excluded or thrown out of the military—and right now there are no concrete plans in place to do so. 

And of course, a preliminary injunction is emergency relief to protect a person from harm that is anticipated to be coming soon. Ordinarily, an injunction is only supposed to be issued after a full trial on the merits. But the law recognizes that sometimes you just can’t wait that long. To give a simple example, maybe you have a situation where the government has seized a beloved squirrel named P’Nut and plans to euthanize it within two weeks. In that situation, you can’t wait for a full trial—you need the court to put a stop to it before the two weeks pass. But when the concern is that approximately two months from now the policy might change to exclude these people eventually … that really isn’t going to cut it.

But there is another problem: Can the court issue an injunction, anyway? Recent action from the Supreme Court suggests that they can’t. But to understand why we have to talk about another one of these cases challenging Trump’s firings. One of the many people fired as Trump came in was 

U.S. special counsel Hampton Dellinger, whose office is tasked with protecting whistleblowers and prosecuting misconduct in the federal workforce.

That is according to this article:

In any case, he got a Temporary Restraining Order—essentially like a preliminary injunction but without requiring the court to even hear from the other side. Such TRO’s are supposed to be extraordinary and rarely granted—so the fact that courts are handing them out like Halloween candy speaks to a judiciary that is not respecting its own boundaries. In any case, the Supreme Court decided not to intervene to stop the TRO more or less because it expires next Wednesday, anyway. Professor Cleveland has some quick analysis of it:





And here’s the thing about the dissent by Gorsuch. We also think it is designed to be essentially a shot across the bow against any judge who is attempting to order people to get their jobs back in the executive branch. We think it is worth quoting from it at length:

Under this Court’s precedents, however, a federal court may issue an equitable remedy only if, at the time of the Nation’s founding, it was a remedy ‘traditionally accorded by courts of equity.’ … That limitation would seem to pose a problem here, for courts of equity at the time of the founding were apparently powerless to ‘restrain an executive officer from making a . . . removal of a subordinate appointee.’ … ‘No English case’ involved ‘a bill for an injunction to restrain the appointment or removal of a municipal officer.’ … And state courts ‘denied’ the ‘power of a court of equity to restrain . . . removal’ in ‘many well considered’ decisions. … Given that pattern of restraint, by the 1880s this Court considered it ‘well settled that a court of equity has no jurisdiction over the appointment and removal of public officers.’

(Citations omitted.) Gorsuch goes on to point out that if Dellinger was wrongly fired, he can still sue for money damages but he doesn’t believe he can get his job back through injunctive relief.

And the thing about that dissent is that no one disagreed with Gorsuch on that point. Yes, it is technically only one justice speaking—with another justice, Alito, agreeing. But the majority opinion ignored the issue entirely because the order would expire very soon, anyway.

So what one is left with is Gorsuch providing learned analysis why courts can’t grant this kind of relief at all. If we were a judge in a district court and we believed we could issue an injunction, we think we would be obligated to explain why we think Gorsuch is wrong before we do so.

In any case, here are a few reactions to the complaint against Reyes:

Another smart thing for her to do is to recognize that this whole case is at best premature and dismiss it.

The hilarious thing is that the judge seems to have forgotten that people from certain law schools are already excluded from court. In most American jurisdictions you have to have graduated from an ABA-approved law school or you can’t become a lawyer.

For the left, that doesn’t help the school’s reputation.





Sometimes a judge deserves to be called out and this was one of those times and this might positively affect the outcome of the case. Naturally, we hope this letter was written with the consent of the mistreated lawyer.

As we have said before, the impeachment standard for federal judges is much broader than it is for presidents. Federal Judges can be impeached for something as vague as a failure to engage in good behavior.

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