Blog No. 128 In the Ninth Circuit a Ruling and in Washington the Theatre of the Absurd

The Ninth Circuit Ruling

On Thursday afternoon, the motions panel of the Ninth Circuit issued an opinion that kept in place the Temporary Restraining Order that had been issued by District Judge James Robart.

The ruling was a stunning defeat for the Trump Administration and it is not clear how matters will proceed from here. The most sensible course would probably be for the administration to withdraw the order and issue it in a more defensible form, perhaps in coordination with Congress. But retreat, even of a tactical sort, does not appear to be in the Trump playbook (excepting, of course, the odd bankruptcy). Some observers have suggested that the government will return to the District Court to battle against a preliminary injunction, while others anticipate an appeal to the Supreme Court. A third possibility might be to seek an en banc review by the entire Ninth Circuit. That approach may not seem appealing, given the reputation of the Ninth as a liberal circuit, but it does have conservative as well as liberal judges, and the other alternatives do not seem particularly promising from the government’s perspective.

On a preliminary reading, the opinion is at its strongest in discussing the rights of lawful permanent residents and other visa holders. The government had suggested that the court could limit the TRO to apply only to them. The Court, however, rejected the suggestion, indicating that such a revision would give no protection to those who are in the United States unlawfully or those whose rights derive from a relative, e.g. a spouse in the United States. (“There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.”) At the same time, the court also declined the invitation to rewrite the executive order itself.  The weakest aspect of the opinion may be that it focused almost entirely on current and prospective visa holders, who constitute only some of the persons covered by Trump’s order.  The other major category is refugees, for whom the analysis is necessarily different, but who were also covered by the TRO. Although the court said little about refugees, it continued the protection of the TRO as to them as well. This facet of the order will doubtless get further scrutiny as the case progresses, wherever that may be.  Apart from legal fine points, the opinion clearly reflected the failure of the government to make a convincing showing that the travel ban was justified by any pressing concerns of national security.

Meanwhile in Washington….

Whatever the strengths and weaknesses of the Ninth Circuit opinion, it was a serious and thoughtful response, in a very short time-frame, to serious issues. While the court was doing its work, the players in Washington were engaged in less constructive pursuits. Recent blogs have recounted the peculiar conduct of President Trump, but now his virus may have infected Capitol Hill. Trump has continued to perplex with his attacks on Nordstrom’s, the Ninth Circuit and Senator Blumenthal. At the same, Senator Mitch McConnell baffled all but his staunchest supporters by silencing Senator Elizabeth Warren for the supposed offense of reading a letter from the late Coretta Scott King regarding Senator Jeff Sessions, the nominated (and now confirmed) Attorney General. Each case appeared to be a self-inflicted wound.

Trump v. Nordstrom

President Trump took to his Twitter page to deplore Nordstrom’s decision to terminate his daughter Ivanka’s line of clothing:

My daughter Ivanka has been treated so unfairly by @Nordstrom. She is a great person — always pushing me to do the right thing! Terrible!

The ever loyal Sean Spicer then doubled-down by asserting that:

There’s a targeting of her brand and it’s her name. She’s not directly running the company. It’s still her name on it. There are clearly efforts to undermine that name based on her father’s positions on particular policies that he’s taken. This is a direct attack on his policies and her name. Her because she is being maligned because they have a problem with his policies.

Nordstrom’s then issued a statement reiterating that its decision was based purely on the business reason that the brand was not selling well. Not to be mollified, however, the irrepressible Kellyanne Conway tripled down by urging viewers of a Fox television program to “go buy Ivanka’s stuff.”  Several legal eperts then observed that this appeared to be a clear violation of ethics rules. Spicer later said that Ms. Conway “has been counseled” but no one expects her to be disciplined in any manner.

Trump v. the Ninth Circuit

Immediately after Federal Judge James Robart had issued a TRO, Trump posted a tweet referring to him as a “so-called judge.” He continued with additional tweets disparaging not only Judge Robart but the panel of Ninth Circuit judges to which the government had appealed Robart’s order. And in a speech on Wednesday, he expressed himself more expansively. Trump began by reading to his audience of law enforcement officials a section of the Immigration and Nationality Act that he believed settled the entire question. He had nothing to say about the constitutional claims that had been asserted and that would shortly form the basis of the Ninth Circuit decision. But more significant than Trump’s personal legal analysis were the aspersions he had in mind for the court. Speaking the day after the Ninth Circuit hearing, Trump made it clear that he was not impressed:

And I listened to lawyers on both sides last night, and they were talking about things that had just nothing to do with it. I listened to a panel of judges, and I’ll comment on that — I will not comment on the statements made by certainly one judge. But I have to be honest that if these judges wanted to, in my opinion, help the court in terms of respect for the court, they’d what they should be doing. I mean, it’s so sad.

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And I don’t ever want to call a court biased, so I won’t call it biased. And we haven’t had a decision yet. But courts seem to be so political, and it would be so great for our justice system if they would be able to read a statement and do what’s right. And that has to do with the security of our country, which is so important.

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So there it is, folks. It’s as plain as you can have it. I didn’t — and I was a good student. I understand things. I comprehend very well, okay? Better than I think almost anybody. And I want to tell you, I listened to a bunch of stuff last night on television that was disgraceful. It was disgraceful. Because what I just read to you is what we have, and it just can’t be written any plainer or better.

I listened to the same hearing that Trump found “disgraceful” and I heard three judges asking thoughtful, pertinent and well-focused questions, I would not have hazarded a prediction as to how the panel will rule, but I saw no basis case for suggesting that their ruling would be “political.”

Trump v. Blumenthal

On Wednesday, Senator Richard Blumenthal disclosed that, in a meeting with Supreme Court nominee, Neil Gorsuch, Judge Gorsuch had described Trump’s comments about Judge Robart and the Ninth Circuit as “demoralizing” and “disheartening.” Trump then responded by Twitter in typical fashion:

Sen. Richard Blumenthal, who never fought in Vietnam when he said for years he had (major lie), now misrepresents what Judge Gorsuch told him?

And he continued:

Chris Cuomo, in his interview with Sen. Blumenthal, never asked him about his long-term lie about his brave ‘service’ in Vietnam. FAKE NEWS!”

Although Trump asserted that Blumenthal had “misrepresented” what Gorsuch had told him, he did not attempt to say just how, nor could he, because a spokesman for Judge Gorsuch had confirmed the accuracy of the quotes. Instead, Trump attacked Blumenthal for his record of military service. Blumenthal, to be sure had, at one point had a problem with his description of his service, but that matter had long since been clarified and it had nothing whatever to do with the Senator’s conversation with Judge Gorsuch. Trump also invoked the term “FAKE NEWS,” which he has taken to applying to any media report that he doesn’t like. The report of Gorsuch’s comments was news and it wasn’t fake. Can this sort of thing really continue for four years?

McConnell v. Warren

While all of the above was going on, Senator Mitch McConnell, thrust himself onto the stage with a remarkably ill-advised maneuver to shut Senator Elizabeth Warren out of the debate over the nomination of Senator Jeff Sessions. Senator Warren was charged with violating Rule 19 of the Senate which bars a Senator from “imput[ing] to another senator or to other senators any conduct or motive unworthy or unbecoming a senator.” Senator McConnell’s objection came as Warren was reading a 1986 letter from Coretta Scott King opposing the nomination of Sessions to be a federal judge. McConnell’s objection was sustained by the chair and a vote of the Senate and Warren was barred from further participation in the debate on Sessions’s nomination.

McConnell’s objection seems dubious at best and its timing astonishingly inept. While it was later claimed that the ruling against Warren was based on the “totality” of her remarks, the King letter would inevitably become the focus of attention. The late Ms. King remains a beloved figure in the Civil Rights community and although Warren’s speech was attracting relatively little attention in the Senate or outside that chamber, McConnell put it on the front pages. In so doing, he gave the Sessions nomination even more baggage than it already had, and doubtless raised tens, perhaps hundreds, of thousands of dollars for Warren in the process. Indeed some cynical observers speculated that McConnell, known as a crafty tactician, must have done it with the intent of raising to the front ranks of the Democratic Party the figure he considers most vulnerable. Perhaps, but I am inclined to think of it only as inexplicably dumb.

That was the week in Washington and it was only Thursday.