HuffPost Politics: Trump’s Attacks on Federal Judges Continue to Draw Fire!

“HONOLULU (Reuters) – One of three federal appeals court judges who last month upheld a ruling that blocked U.S. President Donald Trump’s first try at a travel ban said on Thursday it was “corrosive to the justice system” when litigants attack judges for their decisions.

Judge Richard Clifton of the 9th U.S. Circuit Court of Appeals became the latest in a series of judges to draw criticism from Trump after Clifton and two colleagues refused to reinstate an executive order temporarily barring entry by people from seven Muslim-majority countries.

Shortly after the Feb. 9 ruling, Trump tweeted: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” He also told reporters that the ruling was “political.”

“It’s easy to blame the referee when you don’t like the result,” Clifton said in a speech to the Conference of Western Attorneys General, which is meeting in Honolulu.

“It is corrosive to the system when a disappointing result, or result disappointing to you, is responded to by blaming the referee,” said Clifton, who did not mention Trump by name.

. . . .

In an order issued late Wednesday related to Trump’s first travel ban challenge, a colleague of Clifton, U.S. Circuit Judge Jay Bybee, had words of his own for the invectives against members of the judiciary in these cases.

“The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse — particularly when they came from the parties,” Bybee wrote, declining to mention the president by name.

The judge, who was also appointed by Bush, added: “It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court.”


As pointed out in my blog yesterday, Judge Bybee was actually filing a dissenting opinion supporting the President’s authority to issue “Travel Ban 1.0.” Even so, he was offended by the President’s attacks on his Federal Judicial colleagues. Never good when even those who agree with your legal position are put off by your obnoxious personal conduct.  Judge Bybee also reinforced one of my points — judges at any level never appreciate comments on the merits of a case by a party.

Here’s the link to my post from yesterday:




Trump Mulls Travel Ban Options — Rewrite of Exec Order Possible — Might Forego Request For Supremes’ Intervention Now!

From the Washington Post:

“President Trump said Friday that he is considering rewriting his executive order temporarily barring refugees and citizens of seven Muslim-majority countries from entering the country, indicating that the administration may try to quickly restore some aspects of the now-frozen travel ban or replace it with other measures.

Trump told reporters aboard Air Force One that he would probably wait until Monday or Tuesday to take any action, and White House Chief of Staff Reince Priebus said several options — including taking the case to the Supreme Court — were still on the table.

Trump hinted that the ongoing legal wrangling might move too slowly for his taste, though he thought he would ultimately prevail in court.”


Many commentators have suggested that the Administration could have avoided most of the constitutional issues that have bothered the courts by simply making the order applicable solely to those abroad who have not been admitted to the U.S. as refugees or with visas.

The Solicitor General’s Office at the DOJ (even though there is no appointed “SG” for now, there are plenty of career “Supreme Court pros” on the staff) doesn’t like to “look bad” before the Supreme Court. Normally, the Solicitor General must approve and sign off on all Government filings before the Supreme Court.  It’s possible that the SG’s Office thinks that the Administration’s case is unlikely to prevail in its current posture, and is therefore trying to persuade the Administration not to file for Supreme Court review right now.



BREAKING: En Banc Request From 9th Circuit Judge In State Of Washington v. Trump



FEB 10 2017





DONALD J. TRUMP, President of the United States; et al.,


No. 17-35105

D.C. No. 2:17-cv-00141 Western District of Washington, Seattle


THOMAS, Chief Judge and En Banc Coordinator:
A judge on this Court has made a sua sponte request that a vote be taken as

to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc. A sua sponte en banc call having been made, the parties are instructed to file simultaneous briefs setting forth their respective positions on whether this matter should be reconsidered en banc. The briefs should be filed on or before 11:00 a.m., Pacific time, on Thursday, February 16. The supplemental briefs shall be filed electronically and consist of no more than 14,000 words. See General Order 5.4(c)(3).


What does this mean? Well, having spent eight years on a “collegial appellate court” I can think of three possibilities.

First,  a Judge may request en banc consideration when he or she thinks the panel decision went against the views of the majority of 9th Circuit Judges and wants the full Court to reverse it. Given that the panel that heard Washington v. Trump was fairly representative of the composition of the 9th Circuit, that seems unlikely here.

A second possibility is that a Judge wants the full Court to “put its weight” behind the panel decision, given the importance of the issue. But, because the 9th Circuit has a somewhat diverse makeup, with Judges often disagreeing, it seems unlikely that a majority of Judges would see an advantage to the court in having a potentially “split” en banc ruling in place of the unanimous panel ruling.

A third possibility, and  the one that I think is most likely, is that one or more Judges disagree with the panel decision and want to go on record with that disagreement.  While there seems to be little chance that a majority of the 9th Circuit Judges will vote to hear the case en banc, the denial of the en banc request would give those Judges who disagree with the panel a chance to write a public dissent from the decision to deny rehearing en banc.

We might or might not find out. Often, en banc reconsideration is simply denied without any reasons being given.



Matt Zapotsky in WashPost: “7 key take-aways from the court’s ruling on Trump’s immigration order”



BREAKING: 9th Circuit Panel Unanimously Reject’s Administration’s Request For Stay Of Travel Ban — Read The Complete Decision Here!



I think it will be hard for the Administration to prevail at this stage.  I’d be surprised if either the full (“en banc”) 9th Circuit or the Supreme Court want to get involved at the TRO stage.

President Trump Tweets “See You In Court.” (Hasn’t that line been used before?)  But, as indicated above, I’m not sure that the Supreme Court (particularly with only 8 Justices) will want to intervene at this point. The Supremes did take the Obama Immigration Executive Order case at a preliminary stage; but they were unable to resolve it on the merits, affirming the lower court’s injunction by an evenly divided Court. Not clear why the Court would be in a better position to resolve this one. But, we’ll find out shortly.



Summaries Of 9th Cir. Travel Ban OA & Judicial Bios From WSJ


“An appeals court pressed a Justice Department lawyer Tuesday on whether President Donald Trump’s executive order on immigration is discriminatory, while also pushing an attorney for the two states fighting the order to explain how it could be unconstitutional to bar entry of people from terror-prone countries, the Justice Department lawyer arguing on behalf of the administration, urged the appeals court to remove a lower-court injunction on the order, arguing that the court shouldn’t second-guess the president’s judgment when it came to a question of national security.

The executive order, Mr. Flentje told a three-judge panel of the San Francisco-based Ninth U.S. Circuit Court of Appeals, struck a balance between security concerns and the practice of allowing people to enter the country.

“The president struck that balance, and the district court’s order has upset that balance,” he said. “This is a traditional national security judgment that is assigned to the political branches and the president and the court’s order immediately altered that.’’

The oral arguments on whether to reinstate some, all, or none of President Donald Trump’s executive order on immigration represented a crucial test in the fast-moving legal battle over White House efforts to restrict entry into the U.S. The Jan. 27 order suspended U.S. entry for visitors from seven predominantly Muslim countries for at least 90 days, froze the entire U.S. refugee program for four months and indefinitely banned refugees from Syria. The administration argues the action was needed to keep terrorists from domestic soil.

The president weighed in on Twitter on Wednesday morning: “If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!”

The legal clash, which is also playing out in other courts around the country, represents a remarkable test of the powers of a new president determined to act quickly and aggressively to follow up on his campaign promises. Mr. Trump, who promised repeatedly on the campaign trail to tighten what he called lax immigration policies, issued his executive order a week after taking office, generating widespread protests as well as plaudits and setting off an immediate debate over the extent of executive branch authority.”

. . . .

The court isn’t making a final determination on the legality of Mr. Trump’s order for now. Instead, it must decide what immigration rules will be in effect during the coming months while court proceedings on the substance of the president’s restrictions continue.”

Read the WSJ’s bios of the three U.S. Court of Appeals Judges on the panel: Judge William C. Canby Jr., Judge Richard Clifton, Judge Michelle Friedland:


This one still seems “too close to call.”  There are substantial arguments on both sides. Courts generally do not like to interfere with the authority of the President in the fields of immigration, national security and foreign policy. On the other hand, appellate courts are usually very reluctant to interfere with trial court proceedings at the very preliminary TRO stage. While this might eventually end up in the Supreme Court, as most commentators assume, I’m skeptical it will go there any time soon, given the Supreme’s current short-handed configuration.