Last Friday, Judge Deborah Boardman of the U.S. District Court for the District of Maryland shocked anyone with a conscience by imposing a comically light sentence on the young man, Nicholas Roske, who tried to kill Justice Brett Kavanaugh in the spring of 2022, while also planning to kill two more of Kavanaugh’s conservative colleagues.
In doing so, she functionally condoned political violence — as long as it’s from the left — and based her decision, in large part, on her sympathy for the purported transgender status of the would-be assassin. In a year of preposterous district court decisions, this one takes the cake: Boardman gave a slap on the wrist to someone who planned and attempted the worst sort of political terrorism, it seems, because of her ideological sympathies. The decision is so potentially corrosive to our civic peace that Congress would be right to consider impeachment proceedings against Boardman.
As federal district judges have found increasingly novel and extreme ways to foil the Trump administration’s agenda, calls on the right for judicial impeachment have grown. Indeed, actual articles of impeachment have been introduced. This past spring, the chief justice himself denounced the movement. That he did so was imprudent — it’s not for judges to decide how Congress wields the impeachment power — but his basic argument was probably right. Going back to the start of the republic, there has been a general agreement that mere political disagreement is not enough to warrant impeaching a judge.
What Boardman did in the Roske sentencing is different in kind from simply bending the law to rule against a disfavored party; she seems to have openly excused political violence on ideological grounds. She did this both in her substantive sentencing decisions and in her given justifications at sentencing.
First, a reminder of what Roske did. As we now know from the sentencing recommendation, Roske was incensed by the leaked Dobbs decision while living in California. He mused openly, “Im gonna stop roe v wade from being overturned,” continuing, “I could get a least one, which would change the votes for decades to come, and I am shooting for 3.” He then researched how to carry out an assassination, proceeded to supply himself for the enterprise — he bought a gun, a knife, zip ties, burglary tools, and quiet shoes — and flew to Washington, D.C., to carry it out. He went to Justice Kavanaugh’s house intending to kill him, but saw marshals on duty. After some time casing the house without incident, Roske seems to have gotten cold feet and turned himself in.
This is terrorism, pure and simple. Roske intended to engage in deadly violence against public figures (Supreme Court justices) to change a public policy outcome (maintaining Roe v. Wade’s regime of abortion on demand). That he didn’t succeed is fortunate and beside the point: As Kavanaugh performs his judicial duties, he now has to worry about the real possibility of a left-wing lunatic coming to kill him or his family. The same goes for his colleagues, two of whom, again, were also in Roske’s crosshairs.
Boardman, it seems, didn’t much care about any of this. The crimes with which Roske was charged carried a potential life sentence. The government asked for 30 years. Boardman, agreeing with Roske’s attorney, gave him only eight. We know this was ideological because Boardman seemed more sympathetic to Roske than to the Kavanaughs. Of them, Boardman concluded, “Though [Roske] got far too close to executing her [sic] plans, the fact of the matter is she [sic] abandoned them.” Roske, in Boardman’s telling, is a “she” because, on the eve of sentencing, Roske’s attorney announced he was actually transgender.
Boardman lapped this up. At sentencing, Boardman reportedly was concerned about whether Roske would be placed in a women’s prison and given hormone replacement. She wondered openly whether Roske’s claimed transgender status should affect his sentence, and why, three years after the fact, Roske is actually a threat to the public. She observed, in the end, that she was “heartened that this terrible infraction has helped the Roske family accept their daughter for who she [sic] is.” Boardman even speculated that Roske’s terrorism was seeded in the challenges he had being transgender in a religious family. The left-wing terrorist became the real victim once he announced he was a “she.”
Beyond the ideological sympathy, Boardman shockingly gutted Roske’s “terrorism enhancement” at sentencing. In our sentencing regime, a defendant’s sentencing range under the guidelines can go up if factors are present that justify “enhancements,” such as terrorism.
As prosecutors here explained, “The defendant’s objective — to target and kill judges to seek to alter a court’s ruling — is an abhorrent form of terrorism and strikes at the core of the United States Constitution and our prescribed system of government.”
Indeed, it seems Roske’s lawyers didn’t even disagree with the enhancement; they just asked Boardman to depart from the proposed guidelines range that the enhancement would establish. While Boardman acknowledged the crime did involve domestic terrorism, she then concluded that the enhancement didn’t make a lot of sense because some academics have argued that terrorists tend not to recidivate. The message from this is clear: If you engage in acts of terrorism but do it for the right reasons (e.g., preserving abortion and coming to terms with your so-called gender identity), courts don’t need to treat it as terrorism.
Of course, Roske’s sentence isn’t just about Roske. Among other things, criminal sentences serve both to deter future criminals and to communicate society’s values. We heard this regularly from the judges in the District of Columbia as they threw the book at Jan. 6 rioters. For example, Judge Royce Lamberth justified his actions, while sentencing a man to a prison term just shy of Roske’s for using a megaphone to urge others into the Capitol, “This cannot become normal; we as a society, as a community and as a country cannot normalize the events of Jan. 6.” It seems, though, we can normalize the events outside Kavanaugh’s house. Roske’s sentence doesn’t deter, and it communicates that what matters isn’t political terrorism but the transgender journey of self-discovery.
It’s hard to explain just how corrosive this is to our body politic. Democrats today like to throw around the term “fascism” to describe conservatives and Donald Trump in particular, but judges doling out soft justice to terrorists they agree with is far closer to what led to fascism’s rise in Germany than anything Trump is doing. As Paul Johnson notes in his monumental Modern Times, while discussing the rise of Nazism in Weimar Germany, “[T]he events of spring 1920 sharply increased a tendency already observable the previous year for judges to treat political violence, which had now become endemic in Germany, on a selective political basis.”
He goes on to note that in the early days of the Weimar Republic, political murder from the right occurred over an order of magnitude more frequently than from the left. And yet every single left-wing murderer was brought to justice while the right-wing murders were never solved or excused. Johnson argues this was because right-wing ideology had taken hold in both the German academy and the German judiciary, which resulted in a criminal justice system that viewed violence from the right as understandable and violence from the left as seditious. The parallels draw themselves.
Boardman’s decision to normalize political terrorism is therefore beyond the pale. It’s not that she misapplied the guidelines or got a case wrong — although she does get cases wrong. By excusing threatened violence against the Supreme Court, her judicial actions fall somewhere between winking at and inviting anarchy.
It’s good that the attorney general intends to appeal Roske’s sentence. Even respected moderates such as Professor Orin Kerr agree she should. But it’s ridiculous that this case could eventually end up at the Supreme Court in the possible event that the left-wing Fourth Circuit agrees with Boardman. Will the justices have to rule on how to punish someone who tried to kill three of them? How many of them will recuse? Indeed, it’s hard not to wonder if Boardman, assuming a number of conservative justices would need to recuse, figured she had an opportunity to “do a little justice” without meaningful appellate review.
The House will spare the court from having to, essentially, sit in judgment of its own case if it moves to impeach Boardman. It will send a message to other judges that political violence is not to be excused. Indeed, this should be a bipartisan message because reasonable Democrats shouldn’t want Trump judges excusing, say, Proud Boys any more than we want Biden judges excusing trans-identifying terrorists. Impeachment proceedings would helpfully put Democrats to that question. Even if impeachment or removal doesn’t succeed (it probably wouldn’t), it would set a good precedent that judges who excuse political violence have to answer for it to the people’s representatives.
Judge Boardman may not be interested in deterring the next Roske, but the House has the power to deter the next Boardman.