Seven Federal Judges From Minnesota Talk To The N.Y. Times About Trump Administration

“It’s the rule of law. If you don’t have it, you have either anarchy or you have authoritarianism. You have Russia or you have China or you have North Korea.”

Matt Schwartz at the New York Times interviewed Judge Patrick Schiltz and six of his colleagues from the District of Minnesota.

I have a few reflections.

First, while Schiltz is named and quoted at length, it appears that only a few of the other six were quoted on the record. I think it is problematic when federal judges talk to reporters "off the record." They are not Publius. Article III judges are afforded lifetime tenure precisely because they should be able to voice their opinions. One of the judges admitted as much:

"We are allowed to speak out about judicial independence," said Judge Nancy E. Brasel, whom Mr. Trump appointed in 2018. "And so we should, in order to keep it."

Of course, judges are supposed to voice their opinions in, well, judicial opinions, not the New York Times. Judges should resist the urge to speak to reporters, especially without putting their names to the quotation.

Some of these interviews very well may violate the canons of judicial ethics. By hiding behind anonymity, the public--and litigants in particular--may not be aware of whether a motion to recuse is appropriate. A spokesperson from DOJ said "suggested that they [should] consider recusing themselves if they 'have made public comments on pending or related matters.'" But how will anyone know what was said?

Second, the article mentions repeatedly that Judge Schiltz clerked for Justice Scalia. It appears that then-Judge Scalia hired Schiltz as a law clerk, and then brought him to the Supreme Court after his confirmation. Why is this fact relevant? The unstated subtext is that even a conservative judicial appointee rules against Trump. But the fact that Schiltz clerked for Scalia doesn't tell us much of anything. Ed Whelan, a friend and fellow Scalia clerk, interviewed Schiltz back in May 2026. The takeaway, from my perspective, is that Schiltz had no public conservative bona fides at Harvard Law School. Judges Ruth Bader Ginsburg and Harry Edwards were ready to hire him, but Scalia did so first. Moreover, there are several Scalia clerks (not the counter-clerks), as well as Thomas and Alito clerks, who turned out to be not-so-conservative.

Schiltz might have become a remarkable judge, but his first job out of law school is a non sequitur. We need to stop pretending that an employment decision made when a person is about 25 years old defines who they are for the rest of their life. It's not. And "close" private ties count for little.

Third, the article stresses that Schiltz has close ties to the conservative legal movement.

He clerked for Supreme Court Justice Antonin Scalia in the 1980s and has enjoyed close ties to the conservative legal establishment for decades.

I had never heard of Schiltz before the recent incidents in Minnesota. He has only ever spoken at two FedSoc events, neither of which was on a salient topic. He doesn't even seem to have been active in the Minneapolis FedSoc chapter. I'm sure a group of the establishment crowd can vouch that "he's solid," just like they did with John Roberts. To paraphrase Bubba Gump, conservative is as conservative does. Show me the receipts.

In candor, I meant to write this discussion about Schiltz several months ago when he was being feted by the press. (Whelan and I corresponded at the time about Schiltz.) I held back because I thought that the judge was thrust into the limelight, and was not doing anything to draw attention to himself. Now, the situation is different. He has sought out publicity and a glowing profile.  He is no longer just the recipient of randomly drawn cases. By contrast, Judge Reed O'Connor, who was subject to a hit piece by Schwartz two weeks ago, prudently declined comment. The warm glow of the mainstream media is intoxicating. Judges should just say no.

Third, the district judges worked together and generated templates to rule against the government:

District court judges work alone, but as the number of cases ramped up, the judges recalled seeking one another's counsel, meeting regularly and consulting in running email threads. Eventually, some of their clerks made an informal spreadsheet showing whom to consult on particular legal questions. Some judges built templates of legal orders so they could respond quickly to some of the detention issues that were arising again and again.

I think one of the problems in Minnesota was that judges were issuing orders faster than the lawyers could even comply with them. The use of templates could explain the terminal velocity.

Fourth, we learn that the District of Minnesota is in fact a Denny's that offer 24x7 service.

The judges said they stayed glued to their devices, fearful of missing a petition. Judge Katherine M. Menendez said she responded to one request on her iPad from the coat room of a restaurant. At dinners with friends, Judge Schiltz said he would apologetically explain why he needed to check his phones constantly. "The cost of me enjoying a movie could be somebody waking up in New Mexico the next day when they shouldn't have," he recalled.

But this Denny's, apparently, closes early for the government.

When the Department of Justice asked for an immediate ruling on an arrest warrant, Judge Schiltz said it would have to wait till next week after he could consult with his colleagues.

When a group of protesters disrupted a church service in St. Paul, the Trump administration sought warrants for their arrest, including Don Lemon, the former cable news host who has said he was reporting on the group as a journalist. One of Judge Schiltz's colleagues, Magistrate Judge Douglas L. Micko, had granted three of the eight warrants, but not the one for Mr. Lemon. (Judge Micko, who was not among the judges interviewed by The Times, declined to comment.)

Minnesota's U.S. attorney, Daniel Rosen, then took the unusual step of requesting that another judge review Judge Micko's decision. Judge Schiltz had told Mr. Rosen that he would decide on that after the bench met in person the following week.

You see District Court judges are omnipotent and agile, unless they need to first convene in panels to decide how to deal with Trump stuff.

That timeline wasn't fast enough for the Justice Department. The Jan. 23 email informed Judge Schiltz that the administration had gone around him. It had asked the U.S. Court of Appeals for the Eighth Circuit to force him to issue the other warrants. He had less than three hours to make his case to the appeals court for why it shouldn't intervene.

What followed is one of the more unusual aspects of appellate proceeding. A District Judge represents himself in a mandamus proceeding, and explains to the court of appeals why extraordinary relief is not warranted.

That afternoon, Judge Schiltz fired off two letters to the appeals court. He disputed the government's claim that a warrant for Mr. Lemon's arrest was, in his words, a "national security emergency."

Judge Schiltz could promptly send letters to the Eighth Circuit. He could have also promptly ruled on the arrest warrant issue in the first instance. Judge Boasberg and others are only motivated to move quickly when they want to.

Fifth, Judge Schiltz called the government lawyers incompetent but maintanied there was no effort to flout orders.

In the interview, Judge Schiltz said that many of the government's violations of his court orders appeared to be inadvertent, the result of sloppiness and a lack of legal staffing to accompany the immigration surge.

"My impression was that most, if not all, of the noncompliance was due to incompetence," he said, "not due to conscious defiance of orders."

The entire premise of the article is that flouting orders is a violation of the rule of law. And all the way at the bottom, we learn there was no intent to violate orders. Rather, the lawyers were overwhelmed by the template-driven flood of papers.

If the court thinks that these lawyers in fact engaged in misconduct, the usual response to make a referral to the bar. Not to take shots at them in the New York Times. Indeed, any disciplinary proceedings can now cite these press reports. It might make Judge Schiltz feel better to attack the DOJ lawyers publicly, but that is now how ethical issues are usually handled.

An obvious rejoinder will be, "but Trump…" I've heard the same script since 2017. Even if Trump busts all norms, judges should not respond in kind. Indeed, Trump's most powerful talent is to make other people over-react--even members of the judiciary.

The article closes with this ominous warning from Judge Schiltz.

Obedience to court orders, Judge Schiltz said, is why people feel secure owning a home, saving money, getting married and having children.

"You walk down the street, and you assume you're generally safe because of the law," he said. "It's the rule of law. If you don't have it, you have either anarchy or you have authoritarianism. You have Russia or you have China or you have North Korea."

Does he really believe the actions in Minnesota bring us closer to North Korea and China? I suspect he does. We truly are living in two Americas. What would Justice Scalia say about all the madness in Minnesota? Maybe someone should ask Mrs. Scalia.