Are the U.S. Marshals nothing but slaves to the federal judges they guard? Are there no limits to the power of a judge in a courtroom? These are the questions from a most bizarre blowup in a South Dakota federal court.
The Washington Post reports that on May 10, U.S. District Judge Charles Kornmann of South Dakota, a Clinton appointee, randomly asked a deputy marshal who was guarding his court if she was vaccinated. Aside from this being an extremely inappropriate question, every marshal has been wearing a mask in court, and we are told that masks are effective. The female officer refused to answer the question, and the ungrateful judge summarily ordered her to leave the court. Then, the marshals present in the court allegedly took the three defendants who were scheduled for hearings that day and removed them from the courtroom.
Fast-forward to Monday, and Kornmann unilaterally charged three marshals with conspiracy to obstruct justice and contempt of court. He went on an hour-long rant accusing the marshals of "kidnapping" the defendants. He further asked the U.S. attorney from South Dakota to prosecute the case against them and set a trial date for Sept. 13.
In a May 19 order, this pompous judge charged that the marshals "could well be the most dangerous people in the courtroom in a given case."
"I do not know the answer to that as I have no information since deputies, with the encouragement and full support of their supervisors, are refusing to tell me whether they have been vaccinated or not," wrote Kornmann following the incident in May.
The three accused of contempt are John Kilgallon, chief of staff for the U.S. Marshals Service in Washington, D.C., Daniel Mosteller, the marshal for the District of South Dakota, and Stephen Houghtaling, the chief deputy for that district. Last month, Mosteller wrote in a letter to Kornmann, "Compelling individuals to be vaccinated or delving into their rationale/reasoning for not being vaccinated is very problematic."
But who judges the judge? How can a judge act so inappropriately to those protecting him and then seek to prosecute them without a prosecutor when he doesn't like their response? Can others in the courtroom ask whether the judge has engaged in unprotected sex before or whether he has syphilis, AIDS, or herpes? Maybe he is a threat to others in the courtroom. The point is he has no right to insult members of a separate branch of government and then complain about reprisal.
People often forget that federal judges have no police force. Both the prosecutor and the U.S. Marshals (who are the police force, in part, for the judiciary) are members of the federal executive branch, not the judiciary. The same Judiciary Act of 1789 that created the federal judiciary also created the U.S. Marshals within the executive branch. Thus, the Marshals are as old as they are independent from control of the judiciary. They work for the president at the behest of congressional statutes, not for the federal judges. Rule 4.1 of the Federal Rules of Civil Procedure specifically designates the U.S. Marshals as responsible for processing an order committing a person for civil contempt. Consequently, if the president or his designated officers disagree with such an order, he can direct the Marshals to stand down.
This is exactly what Alexander Hamilton meant when he stated in Federalist #78 that judges have "neither force nor will" and that the court must "ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." This is a feature, not a bug, of the system.
Our founders understood the power of a judicial order and wanted to ensure that the force behind its implementation was left in the hands of a separate branch of government. A president is elected by the people through the states, and Congress is governed by 535 individuals in a bicameral arrangement. They all stand for election. Federal judges are life-tenured and do not stand for re-election. The founders didn't want a single unelected federal judge to simply rule by fiat, which is why the U.S. Marshals, a part of the executive branch, ultimately serve as the police force for the judiciary. When a judge is out of line, it's up to the attorney general, and ultimately the president, to decide whether to give effect to a judicial order.
Our founders designed the system that way on purpose. Because judges are unelected and life-tenured, to provide them with any enforcement power would have been antithetical to the principles of republicanism. The founders gave the power of enforcement to the executive branch and the power of the purse to the legislative branch to check the judicial power, the same way the power to decide individual cases under the law was given to the judicial branch to check the other branches.
In this case, we have a judge who violates privacy rights, as well as the plain meaning of the Emergency Use Authorization statute, which ensures that experimental medical devices or drugs must remain optional. Last month, the judge ordered that all unvaccinated marshals must wear N-95s in his courthouse all day. But this is not his courthouse, and the marshals don't technically work for him. Out of courtesy, over the years, they have deferred to the local judge for guidance on logistical matters, but ultimately they answer to the president and Congress. A federal judge does not have the power to dehumanize those who protect him and make them work under inhumane conditions.
Somehow, these pompous judges think they can wield political power as unelected officials that no single elected official holds. Kornmann has already publicly criticized Governor Kristi Noem for doing "little, if anything, to curtail the spread of the virus." But the twisted irony of his vaccine obsession is that a vaccine doesn't hinge upon public orders to be effective. If his vaccine is so efficacious that it's worth humiliating those who protect him in order to mandate it, then that means it truly is very effective and will protect him or anyone else vaccinated, regardless of the vaccination status of others.
If Kornmann wants to get involved in the politics of COVID, then why not run for office in South Dakota? Challenge the governor or one of the senators if you wish to mandate vaccines. But he knows that he could never get elected as a leftist Democrat in South Dakota, so he seeks to circumvent the democratic process.The question now is whether President Biden will stand up for a respected branch of his own administration and actually show this rogue judge who is boss. It would be a terrific bipartisan opportunity for Congress to get together and impeach this judge and take a stand for our marshals who risk their lives every day for these judges. It's amazing how the same people who are so truculent in wielding their stick of power over helpless citizens suddenly become impotent to check the power of unelected judges who lack any stick whatsoever.