OPINION:
A Biden-appointed federal district court judge, Mustafa Kasubhai, spoke at the recent University of Oregon School of Law graduation.
Yet instead of exhorting graduates to respect the rule of law and to treat all citizens as equals regardless of race, he pushed his radical views on diversity, equity and inclusion, calling DEI “absolutely intrinsic” to equal justice under the rule of law.
This builds on earlier statements Judge Kasubhai made while serving as a non-life-tenured U.S. magistrate judge. In a 2023 presentation before the Oregon State Bar, he declared DEI “the heart and soul of the court system” and called it “absolutely intrinsic to equal justice under the rule of law.”
In a 2021 article for the Oregon State Bar Bulletin, he wrote, “We have to set aside conventional ideas of proof when we are dealing with the personal and interpersonal work of equity, diversity and inclusion.”
Yet the U.S. Supreme Court has repeatedly made clear that such programs — treating people differently based on race — violate the Constitution when implemented by government actors. It has also made clear that these programs likely violate federal (and many state) civil rights laws when private actors engage in such discriminatory conduct.
How can any party challenging DEI policies expect to get a fair hearing before Judge Kasubhai? Even if he can be impartial, do these comments, at a minimum, not undermine the public’s confidence in such impartiality?
If that were not enough to cast Judge Kasubhai’s impartiality into doubt, he also took a not-so-subtle jab at the Trump administration during his Oregon commencement speech this year.
Immediately after quoting one of his favorite leadership researchers who said that many people feel “overwhelmed by the world where bluster, hubris and even cruelty are normalized and sold as a form of leadership,” Judge Kasubhai explained that “before our feet hit the floor we are on our phones witnessing the consequences of misused power and the cost to humanity extracted by leaders who believe they should be served by others rather than being of service to others.”
The antidote, he said, is “fidelity to the rule of law rather than rule of personality.” He encouraged the graduates to seek truth and not to fall for gaslighting.
Who did Judge Kasubhai uphold as a good example of this? Himself, specifically his ruling against the Trump administration’s efforts to protect minor children from harmful gender transition programs and procedures.
Judge Kasubhai said he applied the antidote while ruling against the efforts of Health and Human Services Secretary Robert F. Kennedy Jr. to cut federal funding to medical providers offering so-called gender-affirming care to children.
Judge Kasubhai pointed to the opening line of his opinion, in which he said that “unserious leaders are unsafe.” He then read portions of his opinion, where he said the case illustrates a circumstance that when a leader acts “without authority and in the absence of the rule of law, he acts with cruelty.” Some antidote.
Even if such incendiary rhetoric is permissible in a judge’s written opinion in a case, is it really appropriate for that judge to denigrate the litigants and later publicly tout the opinion as one in which someone stood up to “bad” leaders?
Of course not.
The Code of Conduct for United States Judges — the judicial ethics canons — is meant to guide judges’ behavior. By its metrics, Judge Kasubhai’s falls short.
Canon 2 requires judges to avoid not only impropriety but also the appearance of impropriety. Canon 3 requires judges to perform their duties fairly and impartially. Canon 4 exhorts judges not to engage in extrajudicial activities that would “reflect adversely on the judge’s impartiality.”
Lest Judge Kasubhai’s DEI comments be viewed in isolation, consider too that he maintains a preferred pronoun guide for those appearing before him. He requires everyone in his courtroom to refer to an individual by those pronouns — even if, presumably, doing so would violate someone else’s religious beliefs or conscience.
To compel someone to speak in such a way under the guise of judicial authority clearly violates the First Amendment — though when pressed by the Senate Judiciary Committee during confirmation, Judge Kasubhai pledged to afford “full and complete respect for the First Amendment rights of every person appearing before the court.”
Yet, in his 2023 Oregon State Bar presentation, Judge Kasubhai said, “If somebody has identified themselves by a particular honorific, I say explicitly, opposing counsel is obliged to comply. It is not voluntary, it is not optional, and you will be called on it.”
Judges are not above the law, and judges do not make the law. The Judicial Code of Conduct can help ensure that litigants and all citizens can have faith in a legal system free from bias and partiality.
Yet if those ethics canons are to serve their purpose, they must be enforced when judges likely violate them.
• Zack Smith is a senior legal fellow, and John Osorio is a research associate at The Heritage Foundation.
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