A Conservative Judge Just Torched the Administration’s Case for Wrongly Deporting a Man to El Salvador

If there's anyone whose career is the perfect exemplar of the conservative long march toward control of the federal judiciary, it's Judge J. Harvie Wilkinson, who's been sitting on the Court of Appeals for the Fourth Circuit since President Ronald Reagan appointed him back in 1984. Wilkinson is a longtime member to the Federalist Society. (Leonard Leo, the guru who brought the long match to its success, was an 18-year old Cornell student when Wilkinson got his gig.) In 2003, he wrote in defense of the government's right to detain Yasir Hamdi, an American citizen captured in Afghanistan, which put him on the other side of an issue from Judge Antonin Scalia. He had a shot at a Supreme Court seat under President George W. Bush, but Wilkinson blew that chance by talking about the nomination process, including his job interview with the president, in The New York Times. He has more pure wingnut street cred than practically any other judge on any other bench.

On Thursday, the case of Kilmar Armando Abrego Garcia—and, more specifically, the Trump administration's revoltingly dilatory approach to getting him home—landed in the Fourth Circuit and on Wilkinson's desk, where Wilkinson lit the administration's case on fire.

It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done. This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.

The government asserts that Abrego Garcia is a terrorist and a member of MS-13. Perhaps, but perhaps not. Regardless, he is still entitled to due process. If the government is confident of its position, it should be assured that position will prevail in proceedings to terminate the withholding of removal order. See 8 C.F.R. § 208.24(f) (requiring that the government prove "by a preponderance of evidence" that the alien is no longer entitled to a withholding of removal). Moreover, the government has conceded that Abrego Garcia was wrongly or "mistakenly” deported. Why then should it not make what was wrong right?

That is as plain a "Get that weak shit out of my kitchen" finding as I've ever read. It's tone could be called elegiac, if Wilkinson wasn't so obviously disgusted, and plainly angered, by the administration's threadbare arguments for leaving Abrego Garcia to languish in his Central American hellhole. Also on Thursday, Maryland Senator Chris Van Hollen was allowed to speak to Abrego Garcia, who was outfitted with new clothes for the occasion, in a hotel. (Hellhole? What hellhole?). It is clear that he is becoming the face of the administration's grossly illegal deportation depredations, and the last thing the administration wants is a human face on an inhuman policy. Of course, Judge J. Harvie Wilkinson, last of the Reaganauts, is not the face they want on it, either.