The federal appeals court system is the left’s not-so-secret weapon

The New Neo Posted on by

The left’s Gramscian march has allowed it to conquer several institutions in recent decades: education, media, religion, and entertainment. But at the same time, it has become more clear lately that (except for the charismatic Obama) the left has been losing at the ballot box, both on the national and state level.

At the moment, the majority of state legislatures and governors are in GOP hands. Both houses of Congress are as well, and of course the presidency. The Supreme Court is more or less equally split, and it will probably continue to be so once Gorsuch is seated (which I’m assuming will happen). But depending on the ability of the rest of the judges to hang in there, Trump may get a chance to tip SCOTUS into the camp of the right.

And then there’s the federal appeals court system, which is quite a different story:

When Obama entered the Oval Office, liberal judges controlled just one of the 13 circuits of the U.S. Court of Appeals. Fifty-five successful presidential nominations later, liberal majorities now control nine of those appeals benches, or 70 percent.

Outside of legal circles the transformation of the influential federal appeals courts has gone largely unnoticed, though.

That was written last September. We’re certainly noticing now, aren’t we? The decision of the 9th Circuit (which is a federal appeals court) is very high profile. The 9th has long been liberal, however; it’s not just Obama’s appointments that have tipped the 9th into that “liberal” category. But it used to be in the minority in that respect, and now liberal federal appeals courts are very much the majority.

It’s not just the appeals courts, either; the district courts were affected as well:

“The Supreme Court grabs the spotlight, but it hears fewer than 100 cases a year,” Texas Supreme Court Justice Don Willett said, “while the 13 federal courts of appeals handle about 35,000.”

More than one-third of the 179 judges on federal appeals courts owe their seat to Obama, Willett told The Daily Signal. “That’s a legacy with a capital L.”

Obama also has left his mark on the U.S. District Courts, which are the lower federal courts, successfully appointing 268 judges””seven more than President George W. Bush.

The article goes on to add:

While Republican opposition to Obama’s Supreme Court nominee, Merrick Garland, has remained consistent in the Senate, the strategy for appeals court nominees has fluctuated. Liberals describe it as aggressive, but conservatives belittle it as reserved.

There’s a decent case to be made for both interpretations.

It’s worth reading the entire thing.

The federal court system is the left’s insurance policy. If it does not control the other branches of government—and it does not at the moment—it does control the remaining branch that can (and will, as we have seen) overrule the others. And the left is very aggressive at using that potent tool. I can easily envision a situation in which lawsuits are brought in many states on a matter such as the recent challenge to the Trump EO. As you have seen, if you get the right (that is, left) court, it is possible to stop a nationwide policy of the type that courts traditionally have not gone near.

At some later point such rulings can be appealed to SCOTUS, of course. But what if one more liberal justice had been on SCOTUS? That almost happened, when Justice Scalia died during the waning days of the Obama administration. SCOTUS would then have become predominantly liberal, as well. The fear of that prospect—a liberal SCOTUS—was one of the motives that propelled a great many voters on the right who detested Trump to vote for him anyway.

The raids on illegal immigrants: when Trump does it, it’s news

The New Neo Posted on by

There has been a sweeping series of raids on what the WaPo and the left insist on calling “undocumented immigrants” (implying they should be thought of merely as valid immigrants who somehow carelessly misplaced their papers):

U.S. immigration authorities arrested hundreds of undocumented immigrants in at least a half-dozen states this week in a series of raids that marked the first large-scale enforcement of President Trump’s Jan. 25 order to crack down on the estimated 11 million immigrants living here illegally.

Officials said the raids targeted known criminals, but they also netted some immigrants without criminal records, an apparent departure from similar enforcement waves during the Obama administration. Last month, Trump substantially broadened the scope of who the Department of Homeland Security can target to include those with minor offenses or no convictions at all.

Trump has pledged to deport as many as 3 million undocumented immigrants with criminal records.

So, this involves hundreds. The vast majority are criminals. A smaller number (unspecified) are guilty of “minor” offenses (also unspecified) or “no convictions” (no explanation of how many fall into that last category).

We are no doubt supposed to be alarmed and outraged over this. I wonder how many people really are.

More:

Gillian Christensen, a spokeswoman for the Department of Homeland Security, which oversees Immigration and Customs Enforcement (ICE), said they were part of “routine” immigration enforcement actions.

Christensen said the raids, which began Monday and ended Friday at noon, found undocumented immigrants from a dozen Latin American countries. “We’re talking about people who are threats to public safety or a threat to the integrity of the immigration system,” she said, noting that the majority of those detained were serious criminals, including some who were convicted of murder and domestic violence.

The article continues:

That undocumented immigrants with no criminal records were arrested and could potentially be deported sent a shock wave through immigrant communities nationwide amid concerns that the U.S. government could start going after law-abiding people.

“This is clearly the first wave of attacks under the Trump administration, and we know this isn’t going to be the only one,” Cristina Jimenez, executive director of United We Dream, an immigrant youth organization, said Friday during a conference call with immigration advocates.

Note the language. The first paragraph in that quote is the WaPo’s, which characterizes illegal immigrants without criminal records as “law-abiding people.” And yet illegal immigration can hardly be described as abiding by the law, can it? Then in the second paragraph we have an immigration activist characterizing these lawful sweeps—whether the targets are criminal or non-criminal illegal aliens—as “attacks.”

See how that language thing goes? They are undocumented, law-abiding people attacked by our government under Trump.

Here’s more:

David Marin, ICE’s field director in the Los Angeles area, said in a conference call with reporters Friday that 75 percent of the approximately 160 people detained in the operation this week had felony convictions; the rest had misdemeanors or were in the United States illegally…

“Dangerous criminals who should be deported are being released into our communities,” Marin said.

To me, that last sentence seems to be describing the true outrage.

So, let’s see what seems to have occurred: in Los Angeles, one of the centers for illegal immigrants in this country, the raid involved 160 people, 120 of whom are convicted felons. That’s not a particularly large number, considering the size of the population of illegal immigrants in Los Angeles: about 1 person in 10. The remaining 40 people detained in this raid had misdemeanor convictions or were here illegally, but we don’t know how many were in each of those categories, what their misdemeanors were, and whether they will in fact be deported. And the WaPo isn’t telling.

Here are some of the differences between crackdowns under Obama and this one:

A government aide familiar with the raids said it is possible that the predominantly daytime operations ”” a departure from the Obama administration’s night raids ”” meant to “send a message to the community that the Trump deportation force is in effect.”

Frank Sharry, executive director of America’s Voice, an immigrant advocacy group, said that the wave of detentions harks back to the George W. Bush administration, when workplace raids to sweep up all undocumented workers were common.

So, this is actually less draconian than what happened under Bush? The article goes on to add that for Obama’s first term anyway, raids were “more aggressive” than for any previous president. These facts occur way way down in the story, of course. That’s also where we read the following:

A DHS official confirmed that while immigration agents were targeting criminals, given the broader range defined by Trump’s executive order, they also were sweeping up noncriminals in the vicinity who were found to be lacking documentation. It was unclear how many of the people detained would have been excluded under Obama’s policy.

Let me add that it’s unclear how many of the detained people fall into the non-criminal category in the first place. And let me translate that last sentence of the quote: It’s even possible that Obama might have done the same thing, but we’re not saying.

Federal immigration officials, as well as activists, said that the majority of those detained were adult men, and that no children were taken into custody.

The illegal immigrant community is reported as being panicked, and I have little doubt that is true. Why shouldn’t they be? Trump was elected on the promise of cracking down more on them, and people are learning that he intends to keep a lot of his promises. The activists are trying to stir up the panic, of course—that’s what they do.

Research on low carb diets

The New Neo Posted on by

The gist of recent research seems to be that a diet is a diet is a diet, whether low carb or low cal.

My take has long been that if you like low carb—if you find it a pleasant way of eating, feel good on it, and lose the weight you want—then by all means, great. I’ve written several posts explaining that my experience on such diets has consistently been the opposite. I find them tremendously unpleasant, feel physically bad while adhering to them, and to top it all off I don’t even lose weight.

Different strokes for different folks.

The incredible journey

The New Neo Posted on by

Here’s an astounding story that I initially thought might be a hoax, it was so improbable. But I decided it was indeed true:

A Canadian man who has been missing for five years has been found more than 6,500 miles away in the Amazon jungle.

Anton Pilipa trekked across two continents, walking mostly barefoot with just the clothes on his back, after he disappeared from his Vancouver home in 2012.

His family spent years desperately searching for the former humanitarian worker, who suffers from suspected schizophrenia, and had almost given up hope when they got a call out of the blue.

Please read the whole thing.

He did this without any passport or ID, by the way. How this man survived is beyond me. He seems to have had a fair amount of help along the way, from strangers who sensed he needed it.

I also wonder—after learning that his destination was the National Library of Buenos Aires in Argentina—whether he’s a big Borges fan. His story almost seems like something out of Borges.

More reflections on the 9th Circuit’s decision on Trump’s EO

The New Neo Posted on by

Yesterday’s news about the 9th Circuit’s decision in the Trump EO case is the sort of thing that takes a moment to sink in. But it seems stunning that even the notoriously liberal 9th Circuit could have upheld certain aspects of it, such as the finding of standing of these states to sue and/or of a possible right of citizens of other countries to due process regarding their desire to enter this country. These matters transcend the particulars of this case and would, if affirmed, establish precedents that would open the floodgates to lawsuit after lawsuit by almost any conceivable plaintiff, and a president hamstrung in carrying out immigration policy even under clear Congressional authority.

In other words, this is a big big deal, and one of the difficulties of writing about it and thinking about it is how revolutionary it is and the enormous number of issues involved that are of vital importance.

One thing we can safely say is that Jeff Sessions has his work cut out for him. Too bad he wasn’t on board when the administration decided to address the topic of immigration by releasing this EO. But what’s done is done, and now it’s important to remedy the situation.

There are many many articles to read that summarize the major elements and what’s at stake here. For starters, I suggest you take a close look at David French at National Review. French’s piece is entitled “The Ninth Circuit Just Issued a Dangerous Ruling against Donald Trump’s Immigration Order,” and here’s an excerpt:

…[T]he court ruled that the states of Washington and Minnesota had standing to assert legal claims against the Trump administration ”” mainly on behalf of their state universities and the scholars and students impacted by the order…

Applied more generally, this ruling would give state attorneys general extraordinarily broad powers to act essentially as lawyers for actual or potential immigrants ”” merely by pointing to the alleged costs incurred by key state institutions if they are even temporarily deprived of the immigrant’s presence. While the standing ruling might be more credible if applied to individual immigrants whose exclusion from the country causes specific and identifiable harm to the state, here the court used the possibility of specific harm to confer general standing on states to act on behalf of immigrants as a class. This is extraordinary…

…[T]he court …dramatically extended ”˜potential’ due-process rights beyond green-card holders to citizens from jihadist and jihadist-torn countries seeking to enter the nation for the first time. After an extended discussion of the due-process rights of permanent legal residents of the United States (an unobjectionable and just proposition), the court specifically declined to limit the injunction to green-card holders ”” or even to “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” Instead (and incredibly) it said this:

Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel,408 U.S. 753, 762-65 (1972).

The court is going to stop enforcement of a temporary pause in entry from jihadist and jihadist-torn countries (while in a state of war against jihadist terrorists) because there are “potential claims” regarding “possible due process rights” even of illegal aliens? That’s not deference. Moreover, if you actually follow the cited legal authorities, you’ll see that none of them are on-point with this case, and all of them deal with highly-specific, individual legal claims. Yet the court used this “authority” to grant sufficient due-process rights to potential immigrants to halt enforcement of a wartime executive order motivated by the desire to protect America from the rising threat of jihadist terror. Astonishing.

…[T]he court [also] cracked open Pandora’s Box ”” noting that it will likely consider Trump’s campaign statements in determining whether the executive order violated the Establishment Clause… Never mind that the order plainly isn’t a Muslim ban, and never mind that [Trump’s] campaign statements weren’t made about the order in question. The mere fact that at one point he stated a desire to ban all Muslims may be used to cut through the “considerable deference” the court owes the president. While there is precedent for considering lawmaker motivations in the Establishment Clause context, the consideration of sweeping campaign statements (about a different kind of measure entirely) push that precedent to the breaking point.

French then goes on to add still another outrage perpetrated by the court when it wrote: “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.”

It is bizarre, to say the least, that the government failed to “point” to such evidence, which is readily available and can be fully documented by anyone with the capacity to mount a Google search. But (as French also points out), such proof is not necessary. The president’s power to decide whether such a risk exists is protective, not ex post facto and not subject to court review.

David French could never be mistaken for a Trump fan. But he recognizes the multifaceted danger this decision represents, not so much in terms of its immediate effect in stopping the EO for a while but in terms of what the court is saying about the law and its own power as a court. If SCOTUS ends up affirming the legal principles this court has decided to invent, it is hard to think of a limiting factor on court power. That is one reason to be very very careful about when to take any appeal to the Supreme Court.

I said it is hard to think of a limiting factor on court power, if SCOTUS ends up agreeing with these 9th Circuit lines of reasoning. But I can think of two possible limits, one for each non-judicial branch of government. The first is a president’s ability to appoint federal judges, and Trump will get to do some of that. The second is Congress’s power to control the size and function of circuit courts such as the 9th:

Republican Sens. Jeff Flake and John McCain of Arizona introduced legislation last month to carve six states out of the San Francisco-based court circuit and create a brand new 12th Circuit.

They argue that the 9th is too big, too liberal and too slow resolving cases. If they succeed, only California, Oregon, Hawaii and two island districts would remain in the 9th’s judicial fiefdom…

The court has a reputation as one of the most liberal in the country, in large part because of its makeup. Eighteen of the court’s 25 active judges have been appointed by Democrats.

The other branches of government are not entirely powerless in this fight.

[NOTE: See also this.]

Next stop—SCOTUS?

The New Neo Posted on by

From John Hinderaker at Powerline on what might come next in the EO battle:

…[T]he administration might go straight to the Supreme Court. But bear in mind that all the 9th Circuit has done is to deny a motion for an emergency stay, based on “the limited evidence put forward by both parties at this very preliminary stage.” I think the administration could pretty easily tweak Trump’s order to meet the relatively minor objections the plaintiffs have put forward, and create a record in the trial court that would make it difficult for even the 9th Circuit (this is known as “judge shopping” by the plaintiffs, by the way) to stand in the way. In the meantime, let’s confirm Justice Gorsuch, just in case the Democrats try to execute a judicial coup.

From Paul Mirengoff, also at Powerline:

I would like to see the administration take this case directly to the Supreme Court. The law so clearly favors the administration that a win isn’t out of the question.

In any event, let’s have the Supreme Court speak. If it doesn’t overturn the Ninth Circuit, it can share responsibility in the event of a terrorist act the travel ban might have prevented.

Regardless of whether the injunction against the administration is lifted, the case is headed back to the courtroom of the strange judge in Washington State for a decision on the merits. That decision can be appealed. By the time this appeal makes its way to the Supreme Court, perhaps Judge Gorsuch will be on that bench, thus improving the administration’s chances of success.

Would a loss in the Supreme Court on a appeal now hurt the administration’s chances later? I don’t think so. A 4-4 ruling would have no impact later. And if the administration loses 5-3 because it can’t get Kennedy’s vote, it probably will lose 5-4 later.

So my initial take is that the administration should take this to the Supreme Court straight away.

The reason the government could have two chances at judicial review by SCOTUS (if the Court decides to hear them) is that we’re talking about two separate cases. The first would be a SCOTUS review of the TRO and the affirmation of the TRO by the 9th Circuit, and the second would be an appeal of Robart’s decision on the merits in a proceeding which will now most likely be going forward but has not yet done so. Trump could lose the first appeal and win the second, if Gorsuch is on the Supreme Court by the time that appeal arrives there.

[ADDENDUM: William Jacobson of Legal Insurrection disagrees with those who would advise President Trump to rewrite the executive order:

The Executive Order, as the Trump administration has said it would be enforced (for example, excluding green card holders from its reach), is perfectly lawful and within the President’s power and authority. To accept the 9th Circuit ruling is to accept that the President does not have the powers vested in him by the Constitution and Congress.

This legal dispute no longer is just about the Executive Order. Democrats have made clear that they will fight in court over almost everything the Trump administration does. The 9th Circuit has opened the door to this tactic on an issue that goes to the core of presidential authority.

If the Courts are to designate themselves the functional directors of the Department of Homeland Security, then such mandate must come from the Supreme Court, not the 9th Circuit.

But sometimes timing is of the essence. Rewriting the EO would merely clarify some things the administration has said it intended anyway—such as, for example, that green card holders will not be affected. It could be framed to the public as being a clearer and more explicit statement of what Trump intended anyway rather than a bow to the 9th Circuit (I’m not sure how widely that would be believed, of course). If the case goes to the Supreme Court at the moment, the best result I see possible is a 4-4 tie, which has the effect of letting the 9th Circuit decision stand. So it would be counterproductive as well as unnecessary at this point. Wait for a decision on the merits and appeal that to the full Court once Gorsuch has been seated.

It has also been pointed out in several articles I’ve read that nothing in this 9th Circuit decision stops the administration’s proposed vetting study and any resultant fine-tuning of the vetting procedure from going ahead, even without the several-months’ moratorium on immigration envisioned by the EO.]

Decision: the 9th Circuit opinion [see UPDATES]

The New Neo Posted on by

UPDATE 11:59

Reading this analysis of the 9th Circuit decision by Patterico at Red State, I’ve concluded that he’s saying that the ruling went the way it did mainly because the judges felt that the original EO included green card holders, thus depriving them of the due process to which they were entitled.

That certainly would have been a valid objection, if in fact they were excluded. As I wrote in this comment of mine at 8:54 PM today:

No legal resident is being barred from the country [under Trump’s EO], as long as the EO doesn’t refer to legal residents (and it was clarified that it did not; the confusion about green card holders was one of my original criticisms of the EO).

I have been assuming that the later clarification by the administration that green card holders were not subject to the EO had done away with that objection. But the court didn’t seem to see it that way, and decided that the government could change its mind again and apply it to green card holders, and that that was not an acceptable situation.

As I wrote on February 4th:

I’ve said before that Trump and his advisors should have ironed out a lot of things and clarified them before releasing his immigration executive order. Sloppiness is wrong on two scores: it leads to bad outcomes for many people, and it opens the administration up to valid criticism. It forces officials to play catch-up, scrambling to correct misperceptions and revising the order as originally written. A little bit of this is to be expected; nobody’s perfect. But there’s been an unacceptable and needless level of it this time.

For example, as I’ve written earlier, why not allow people already in transit on airplanes to arrive under the old rules? Why not make it crystal clear at the outset that it doesn’t affect green card holders? Both would not only have made the order more well-thought-out, but would have deprived Trump’s opponents of countless talking points and illustrations of hardship and outright stupidity.

There was no pressing imminent danger that dictated a rush that led to so much sloppiness that we are now in this pretty mess. However, that doesn’t mean that a court challenge wouldn’t have been mounted anyway, no matter how careful the Trump administration had been. I believe the EO would have been challenged even if every “i” had been dotted and every “t” crossed. And the 9th Circuit probably would have ruled against Trump. But why make the opposition’s task easier for them?

Could this now be remedied somewhat by rescinding the original EO and releasing a different one, now that Sessions is on board? I don’t know enough about this area of law to say. Any takers on that question?

But I doubt it would matter at this point. A whole herd of cats are out of the bag and running loose all over the place, howling and screeching.

UPDATE 8:00 PM Andrew McCarthy has tweeted:

Truly outrageous ruling. Judicial oligarchy over political branches on nat’l security; even ILLEGAL aliens have rts against exclusion.

The word “outrageous” keeps coming up.

And here, at least, I seem to have found an answer to one of my questions, and it appears (at least at the moment) that the case will go back to the lower court for a fuller determination:

A three-judge panel of the U.S. 9th Circuit Court of Appeals ruled that a Seattle federal judge’s earlier restraining order on the new policy should remain in effect while the judge further examines its legality.

The three judges, two Democratic appointees and a Republican appointee, unanimously said the administration had not shown an urgent need to have the order go into effect immediately.

UPDATE 7:30 PM

Well, that’ll teach me to write so quickly. I was basing my original post (below) on a report that had only a couple of sentences describing the actual ruling by the 9th Circuit. It seems, though, that the ruling was a lot more complex than that impression. Legal Insurrection has a post that describes it in much greater detail.

I’ve changed the title of the post to better reflect the ruling.

It looks pretty bad for the Trump side, even though it still appears to have the effect of throwing the full decision on the merits back to the lower courts, and then it will probably go to SCOTUS. At least, that’s my current understanding.

From William Jacobson at Legal Insurrection:

The long and the short of the 9th Circuit opinion is quite outrageous. It extends constitutional due process protections even to people who have not yet even applied for a visa, and it substitutes the court’s judgment as to reasonableness of security measures for that of the executive branch and President.

The 9th Circuit failed to distinguish between people even the government concedes have some due process rights and as to whom it would not apply the Executive Order (e.g., permanent residents, those lawfully in the U.S. on a visa) and strangers abroad who may not even have applied for a visa.

Read the entire LI post, and tune in for further elaborations on the theme. I’ll wait a bit till things become clearer. I’d like to determine whether the court has actually ruled on the requirement for due process, or whether the judges are just saying that in order for them to have thrown out the TRO issued by the lower court, the government attorneys would have had to have demonstrated definitively that due process was followed. It seems to me (again, on a very very quick skimming of the language of the court) that one of the problems, for example, was that people who do have such due process rights (green card holders) were not distinguished as such in the EO.

I await further clarification on all of this.

[Original post follows.]

I’m doing this very quickly, based on a rapid skimming of initial reports, but here’s the situation as I currently understand it.

It seems that the 9th Circuit has punted, just as Andrew McCarthy had suggested they might. My post on the subject earlier today began this way:

So, how will the 9th Circuit rule on the TRO against Trump’s EO?

Or will there even be a ruling by that court at this time? Andrew McCarthy explains why there shouldn’t be (at least for now), and why the matter should be punted back to Seattle federal district judge James Robart for a fuller proceeding in that court.

That seems to have been exactly what the court did, although the article I just linked to reads (in its present form, anyway) as though the court had definitively ruled against Trump rather than merely ruling not to change things at the moment and to wait for the legal process to play out in the lower courts.

The punt has the effect, of course, of keeping the ban in place because it is a refusal to overrule the lower court (the 9th is an appeals court). But try and find that out by reading the CNN article I just linked to, which so far is mostly a criticism of Trump’s EO (“Trump issued the travel ban on January 27, causing chaos, confusion and protests at international airports as the legal status of people in transition was suddenly thrown into question”).

Jeffrey Toobin is quoted as having this to say on the 9th’s ruling:

“The Trump administration has lost dramatically and completely, and they’re going to have to decide what to do next,” said Jeffery Toobin, a CNN political analyst, on “The Situation Room.” “This decision will have a lot more public credibility because it is unanimous, and I think it complicates the Trump administration’s attempt, if they choose to make it, to disparage this decision as a political act.”

Now, I’m not a big ole legal analyst like Jeffrey Toobin. But Andrew McCarthy is, and not only did he predict this move, but he explained it, and it certainly isn’t described as a dramatic loss (although plenty of commentators such as Toobin will indeed characterize it that way). And it’s absolutely not “complete.” It was unanimous, yes; but even I probably would have ruled the same way at this point (having read the McCarthy article), had I been a member of the court. Nor does the ruling tell us what the lower court (or courts, because the issue is coming up in several venues) will do, or when the Supreme Court is likely to hear the case and whether it will be a panel of 8 or 9.

In fact, I could spin this as a Trump victory—comparatively speaking—because I was expecting the 9th to issue a decision on the merits, 2-1 against him.

However, since I’m not much of a spinner, I’ll say that it’s not a victory. A victory would have been what was never in the cards, a decision by the court to end the TRO. Now, instead, Trump is faced with a host of difficult decisions about when to try to take the case to SCOTUS—quickly (and risk the 4-4 decision, which would not reverse the lower court nor would it resolve differences among different courts), or later (and have the restraining order stand until then).

One thing of which we can be fairly sure is that the GOP will try to expedite the Gorsuch hearing and approval, and the Democrats will do their level best to prevent or at least delay his seating on the Court.

My hat is off to Andrew McCarthy, though (as it so often is).

Predicting a ruling from the 9th Circuit on Trump’s EO

The New Neo Posted on by

So, how will the 9th Circuit rule on the TRO against Trump’s EO?

Or will there even be a ruling by that court at this time? Andrew McCarthy explains why there shouldn’t be (at least for now), and why the matter should be punted back to Seattle federal district judge James Robart for a fuller proceeding in that court.

But as far as I can see, most people think the 9th will be issuing a decision fairly soon. And I don’t think it takes a master prognosticator to say that it’s highly likely that the ruling will go against Trump’s order—and that this could have been predicted even before the case was heard, strictly on the basis of the political makeup of the 9th Circuit. The three federal judges who make up the 9th Circuit are Judge William C. Canby Jr, appointed by Carter, Judge Michelle T. Friedland, appointed by Barack Obama, and Judge Richard R. Clifton, appointed by George W. Bush. That indicates to me that the decision is most likely to go at least 2-1 against Trump.

I had some difficulty discovering how Judge Clifton—the Bush appointee—had ruled in the court’s earlier refusal to immediately lift Robart’s original TRO. Then I learned why the information had been so hard to locate:

…[O]nly Canby and Friedland were listed as joining in the initial order denying a so-called administrative stay of Robart’s ruling while the appeals court mulls the issue. It was not immediately clear why Clifton was not mentioned in the order, but 9th Circuit procedures allow some motions to be decided by the first two judges who receive the request, if they agree. A 9th Circuit spokesman did not immediately respond to a request early Sunday for comment on Clifton’s absence from the order.

So my guess is that, once it was clear how the other two judges would be voting, there was no need for Clifton to weigh in officially, and so he didn’t. Therefore we still don’t know much about his leanings. But it really doesn’t matter, because (as already indicated) I would bet an enormous amount of money that Canby and Friedland will be ruling against Trump. I would add that this would be true even if the DOJ attorney had done a bang-up job in presenting the Trump case, which he apparently did not.

I say he did a poor job based on the reaction of just about every commentator I’ve read on the subject, left or right. I haven’t listened to his argument or read a transcript myself, but the unanimity of the criticism indicates to me that he probably did in fact do a bad job.

If so, why? There are several possibilities. One can be found here. Apparently, Flentje was a last-minute replacement:

Just hours before mounting the biggest defense of the young Trump administration, the Justice Department swapped lawyers.

The U.S. said the two top lawyers representing the U.S. would not take part in Tuesday’s hearing, because of their past relationship with one of the world’s biggest law firms, Jones Day. Instead, August Flentje, a longtime Justice Department lawyer, will argue the administration’s case.

The lawyers who stepped aside worked until recently at Jones Day, which filed a brief on Monday opposing the administration’s order to bar U.S. entry to people traveling from seven majority-Muslim countries. The executive branch doesn’t have “unreviewable authority” to suspend the admission of a class of aliens, Jones Day argued in a brief on behalf of several constitutional scholars.

That sounds like a nightmare scenario to me, the lawyer’s version of the student anxiety dream or the actor’s forgetting lines and having to go on stage.

What’s more, there’s this:

It’s standard practice for lawyers who join a new administration to distance themselves from any matter that involves their law firms. What’s rare is that an administration would need its solicitor general and Justice Department to defend a signature action just weeks into its first term, when affiliations with previous employers are so fresh.

So another factor here is the speed with which the lawsuit occurred. The Trump administration is only two and a half weeks old and this issue is already being heard in the courts. That’s at least in part because Trump himself acted with such speed in issuing his EO. Whether you see Trump’s extreme speed as having been necessary or not, it seems to have affected the legal defense in a court challenge that could have and should have been predicted by the administration.

Then there’s the question of whether Flentje really believed in his case, in the political sense. It’s not all that unusual for lawyers to be placed in the position of advocating for things in which they don’t believe. That’s actually one of the reasons lawyers are detested by a lot of people, and seen as hypocrites for hire (or whores, if you want to get nastier about it). I don’t agree with that characterization; I think this aspect of lawyering is an inevitable part of our adversarial legal system, and I see no way around it and do not blame lawyers for it. A good lawyer can transcend it if he/she wants to, but that lawyer has to want to.

I have no idea whether this was a factor for Flentje; after all, his last-minute substitution might fully account for his shaky performance and there’s no need to invoke lack of zeal as well. But it’s possible. Here are some details of Flentje’s history:

August Flentje, an Ivy League lawyer and son of a professor, is from a family with members who have protested the ban, and he’s been involved in controversial cases before, such as the government’s previous defense of traditional marriage…

According to Bloomberg, Flentje has worked as a lawyer for the Department of Justice for 19 years.

He was involved for the DOJ in defending the federal Defense of Marriage Act. A group called the Pacific Justice Institute included his name, though, on a list, alleging that Justice Department attorneys were working to sabotage the government case or were not defending its side vigorously enough.

His name appears on government filings in the gay marriage litigation.

According to Law 360, he argued for the government in a case in which “the U.S. Department of Defense”¦urged the D.C. Circuit to uphold a federal judge’s decision to keep classified a document purportedly related to the release of five Guantanamo Bay detainees in exchange for accused deserter U.S. Army Sgt. Bowe Bergdahl, saying the document sought by a conservative group is covered by the deliberative process privilege.”

So—as one might expect from a lawyer who obtained his DOJ job during the Clinton administration, and stayed on through Bush’s and Obama’s two terms each—Flentje has defended the government on both sides of the fence. His dad has this to say about him (make of it what you will):

Flentje’s father told the Wichita Eagle newspaper that Flentke [sic] would put personal beliefs aside to argue the immigration ban case.

“He’s a civil servant, and I think he’s been very careful,” his father told the local newspaper. “We have family members protesting what’s going on, but he plays it pretty close and I think has a deep sense of duty, representing to the best of his ability the president within the law and the Constitution.”

That sounds like a hypothetical to me: Flentje would put his personal beliefs aside (if they conflict) rather than that he will put his personal beliefs aside (because they do conflict). We don’t know much about what his personal beliefs might actually be, and I doubt he’ll be telling us.

Has anyone…

The New Neo Posted on by

…on the left used the term “failure theater”* to describe what the Democrats in Congress are doing these days? That is, empty histrionics that are getting them nowhere so far in terms of stopping the approval of Trump’s cabinet?

Is failure theater of this sort satisfying enough for their base? After all, the idea is that it rallies the troops.

* In case you’re unfamiliar with the term “failure theater,” it’s what was said over and over and over on the right to criticize and belittle the efforts of the GOP in Congress to stop Obama’s and/or the left’s policies, back when the left was in control of the presidency (and also, for much of the time, all or part of Congress).