'A troubling, outrageous gesture': Retired judge sounds alarm on Trump admin attack on courts

A pair of federal judges have ordered the Trump administration to reinstate thousands of fired federal workers at the departments of Veterans Affairs, Agriculture, Defense, Energy, Interior and Treasury. The White House vowed to fight what it called an “absurd and unconstitutional order.” This comes as the White House and its allies have increasingly targeted judges who rule against the administration. Elon Musk has posted dozens of messages on his social platform X calling for the impeachment of judges who rule against the administration. We speak with retired federal Judge Nancy Gertner, who served as a federal district judge in Massachusetts for 17 years, from 1994 to 2011. “The distance between what they are trying to do and what is lawful is so enormous that anyone would rule as these judges are doing,” says Gertner.

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now!, democracynow.org. I’m Amy Goodman.

Two federal judges — one in Maryland, one in California — have ordered the Trump administration to reinstate tens of thousands of fired federal workers. In one of the rulings, District Judge William Alsup said, “It is a sad day when our government would fire some good employee and say it was based on performance when they know good and well that’s a lie,” unquote. The White House responded by saying, quote, “The Trump Administration will immediately fight back against this absurd and unconstitutional order,” unquote.

This comes as the White House and its allies have increasingly targeted judges who rule against the administration. Reuters recently reported U.S. marshals have warned federal judges of unusually high threat levels due to a series of comments from Elon Musk, Donald Trump and others targeting judges. Musk has posted dozens of messages on his social platform X calling for the impeachment of judges who rule against the administration. He has also called judges “corrupt,” “radical” and “evil.” Vice President JD Vance has questioned whether judges even have the authority to rule on Trump’s order. Vance went to Yale Law School. Vance wrote last month on X, “judges aren’t allowed to control the executive’s legitimate power,” unquote. President Trump has indicated he believes he’s above the law, recently writing, quote, “He who saves his Country does not violate any law,” unquote.

Trump has also gone after law firms. Last week, he levied unprecedented penalties against the firm Perkins Coie, that has ties to the Democratic Party. On Wednesday, a federal judge partially blocked the order, saying the order, quote, “casts a chilling harm of blizzard proportions across the legal profession,” unquote. The American Bar Association has also criticized efforts to undermine the courts. In a statement, the ABA said, quote, “We will not stay silent in the face of efforts to remake the legal profession into something that rewards those who agree with the government and punishes those who do not.”

We’re joined right now by retired federal Judge Nancy Gertner. She served as a federal district judge in Massachusetts for 17 years, from 1994 to 2011, now a professor at Harvard Law School. She’s also the author of the book, In Defense of Women: Memoirs of an Unrepentant Advocate.

Judge, welcome to Democracy Now! It’s great to have you with us. If you can respond, overall, to the attack on judges, and judges pushing back around the country?

NANCY GERTNER: You have to put it in context here. What the judges are doing in cases across the country are dealing with executive orders that are so, so far from lawful, constitutional, consistent with the statute, that, frankly, if they didn’t respond, there would be something wrong. In other words, there have been, what, over 111 lawsuits filed, and, for the most part, every time someone asks for a preliminary injunction or a temporary restraining order, that has been allowed. It does not matter who appointed the judge. It doesn’t matter where this is happening in the country. As I said, the distance between what they are trying to do and what is lawful is so enormous that anyone would rule as these judges are doing.

The case in California, for example, is a classic example. The judge there yesterday said, you know, “Give me an explanation as to why the probationary employees have been resoundingly fired.” And the Trump administration refused to provide anyone from the Office of Personnel Management. It was as if they were saying, “We don’t have to explain. We don’t have to give an explanation.” And the judge was absolutely furious, because, of course, there has to be an explanation. These people were fired, completely not following any of the rules. And worse, in order to sort of come up with a lame justification, people who had great performance reviews only, you know, a few months ago were suddenly described as inadequate employees. I mean, it was a contrivance. It was a lie. And it violated numbers and numbers of laws and statutes. So, judges are doing what they are put on the bench to do, which is to call it as they see it.

AMY GOODMAN: Let me ask you your thoughts on Vice President Vance, who notoriously stated, “judges aren’t allowed to control the executive’s legitimate power.”

NANCY GERTNER: Well, I think the word “legitimate” carries weight in that sentence. The question is: What’s legitimate? And courts are supposed to say what the law is. That was settled, you know, in the last century. Courts are supposed to say what is constitutional and what the law is, and the executive is to follow. So, they are doing what is completely within their legitimate scope of authority. And he knows that. He knows that. I’m a Yale Law graduate, as well, and his statements, frankly, are chilling, really extraordinary.

AMY GOODMAN: Judge Gertner —

NANCY GERTNER: So, yeah, he knows that. But the — yeah.

AMY GOODMAN: I want to move on quickly, because we don’t have much time, and there’s a lot to talk about. I wanted to get your response to efforts by some House Republicans who have introduced a bill aimed at limiting the power of judges, in response to the mounting challenges against Trump’s measures, and the role of the Supreme Court.

NANCY GERTNER: Well, that was to be expected, which is to try to restrict the authority of judges. But the authority of judges to announce what the law is is in the Constitution, or it’s an interpretation of the Constitution, which they cannot undo without undoing much more than just the issue of this judge or that judge. Judges are supposed to interpret the law, and particularly interpret constitutional law. And this is power, it seems to me, that is baked into the Constitution and cannot be taken away. So, this is an empty gesture. But even worse, it is a troubling, outrageous gesture.

AMY GOODMAN: And can you respond to lawyers for Trump asking the Supreme Court this week to lift a nationwide pause imposed on the president’s order ending birthright citizenship for the children of undocumented immigrants, marking the first time the legal wrangling over the president’s order to end birthright citizenship has reached the Supreme Court?

NANCY GERTNER: Well, this is — again, this was a move that, in my view, is so far from constitutional that no judge worthy of their name would ever rule in a different direction. Birthright citizenship is in the Constitution. Birthright citizenship was affirmed — what is it? — a hundred years ago. So, this is just pushing back on the judiciary, and then, when the judiciary does what they don’t want them to do, and the judiciary says this is wrong, trying to delegitimize that decision. I can’t tell you how fundamentally dangerous all of this is, because the judiciary is one of the institutions that deal with checks and balances. And if you take them out of the picture, you’re going the way of Hungary, you’re going the way of Russia. And it’s extraordinarily troubling.

AMY GOODMAN: And can you talk about President Trump simply not obeying the courts? I mean, U.S. marshals are the kind of army for the courts, but they’re under the Justice Department, Trump’s Justice Department, the heads of that calling themselves Trump’s lawyers.

NANCY GERTNER: The marshals are supposed to be the enforcer of judgments. And as you say, they are under the supervision of the Department of Justice. Their authorizing legislation, however, says that the marshals shall enforce the law. And so there’s a division here. On the one hand, the authorizing statute says they shall enforce the law. And even if Pam Bondi says, you know, “I’m sorry, that law doesn’t matter. We’re going to skip over that law,” they still have an obligation to enforce the law. If they did not, then we would have a constitutional crisis.

Saying that doesn’t describe what that would mean. A constitutional crisis, what does that mean for all of us? I mean, then, it would mean, really, a marching on Washington, deluging all of our congressmen and representatives. It could mean mass demonstrations. I mean, it’s almost the end of law. And at that point, people have to make it clear, as the population in Israel did, as populations in Poland did, that this is beyond the pale. This is not what our Constitution was meant to accomplish.

AMY GOODMAN: Judge, would you call DOGE’s taking over of federal agencies, you know, run by, as President Trump keeps saying, Elon Musk, the richest man in the world, who gave the most money to the president to be reelected — would you call what’s happened, as judges push back across the country and say tens of thousands of workers have to be reinstated — would you call what has happened a coup?

NANCY GERTNER: What has happened with Elon Musk, well, I have called it a coup. If it succeeds, it will have been a coup. In other words, if the definition of a “coup” is a small group of people who are not elected — and there was Musk — who are taking over the power of the government, yes, I would call it a coup. I mean, he — there are challenges around the country to his authority, to Musk’s authority — Musk, who is not confirmed by Congress, who was selected by means that no one exactly knows, who was given powers that no one knows about, who is getting access to information that only government officials who have been appropriately selected can get. And if he’s successful in that — there are challenges to that. If he is successful, yes, I would call that a coup.

AMY GOODMAN: We’re going to leave it there. I want to thank you so much for being with us, retired Judge Nancy Gertner, professor at Harvard Law School, served as a federal judge in the District Court of Massachusetts for 17 years, speaking to us from Massachusetts.

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