Midterms: Judge Now Lest You Be Judged... Very Badly!

Need another reason to get out and vote this midterm? Two stories this week demonstrate how important it is to keep the Senate—and to think about those other, too often neglected, judicial races.

On Friday, Biden-appointed Southern District of Florida Judge David Leibowitz ruled that Section 611 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which outlaws voting by non-citizens in federal elections, is unconstitutional. The ruling came in the criminal case of Chelsea Cox, a woman from Jamaica who is not a U.S. citizen yet voted in the 2020 federal election.

Leibowitz’s ruling is that Section 611 is unconstitutional “because it is a voter qualification statute that Congress has no power to enact.” Leibowitz’s reasoning is that the U.S. Constitution gives states the sole authority to determine voter eligibility. Thus, Congress cannot determine that non-citizens cannot vote nor can those who do be prosecuted at the federal level.

While Leibowitz invoked the amicus brief of conservative lawyer Paul Clement, former solicitor general during the George W. Bush years, others think Leibowitz is dead wrong. Legal analyst Hans von Spakovsky of Advancing American Freedom was quoted by Fox News as saying Leibowitz’s ruling is “patently wrong.”

Spakovsky agrees that the Constitution does give the states jurisdiction over voter requirements for eligible citizens, but notes that in “Article I, Section 8, Congress is given 100% authority over naturalization.” He predicts the ruling will be quickly overturned by the 11th Circuit Court of Appeals.

As Utah Senator Mike Lee wrote on X, this ruling “gives the game away: Democrats pretend we don’t need the SAVE Act because non-citizen voting is already illegal… while activist judges try to destroy laws banning non-citizens from voting!”

The other big story involving judges is a decision—but not a decision from the bench. In an interview with CBS News scheduled to be aired in the coming week, 76-year-old Justice Samuel Alito, who announced in August that he is not retiring this year, said he will consider doing so next year.

The importance of Alito’s revelation is that Donald Trump may get a chance to nominate a fourth Supreme Court justice in the next two years. Alito demurred on questions about the possibility that his retirement’s timing might mean a reversal of some of the decisions he made. “It’s too hard to predict what the political situation will be,” he said, “and what any president might do with respect to a replacement.”

While Alito’s caution about the future is laudable, it is important for conservatives to think about the fact that the stalwart Alito, whose landmark opinions include the Dobbs decision overturning Roe v. Wade, will not be a justice forever. Conservatives should be thinking about how to ensure Alito’s seat on the bench remains in conservative hands for 20 or 30 years.

This is where this election comes in. While neither Justice Alito nor Judge Leibowitz is up for election, what is at stake this fall is the narrow GOP Senate majority. If the GOP keeps the Senate, we will have two more years of the Trump administration nominating multiple lower-court judges and possibly at least one Supreme Court justice. It might be good to get a newer, younger Justice Thomas, too, but the 78-year-old dynamo has shown no signs he is ready to lay down his gavel.

Given the problems with the federal judiciary, the GOP must keep the Senate lest we get more judges like Leibowitz and the many other judges who seem to believe their task is to issue universal injunctions against the Trump administration.

If this isn’t enough judicial impetus, voters ought to get out for yet another court-related reason, however. While federal judges are not directly on the ballot, for many of us, local judges certainly are. Ballotpedia lists 28 states with judicial elections this year. Where I live in Texas, we have judicial elections involving the state supreme court, appellate courts, and local district courts on the ballot this fall.

Texans have the advantage of partisan elections of judges. Having lived in states where judges are elected on a non-partisan basis, I know it can be very difficult to find out the record or the judicial philosophy of potential (or even current) judges on the ballot. Yet it is essential to do so.

Judges at the state level and especially the local level play a massive role in our political and social well-being. Like local sheriffs, judges have a direct effect on the quality of life in your area because their dispensation of justice—or lack thereof—will help determine how safe you are. Those judges who take their cues from George Soros and progressive theories of justice are likely to endanger you with their behavior.

In Harris County, where Houston is located, there has been a standing problem of judges who have released violent offenders into the community. Last year, a judge released on bond an alleged participant in the ambush and murder of a sheriff’s deputy. There are numerous other stories of such judicial malfeasance in Houston and in cities all over the country.

In John’s Gospel, Jesus says, “Do not judge by appearances, but judge with right judgment.” In our system, we are given the responsibility to judge candidates for office, including senators who approve federal judges and many of our local and state judges themselves. We had better judge those candidates with right judgment. If we don’t, we might find that the ones with bad judgment are making our lives worse.