The Ninth Circuit erupted into a full-scale war over the appeals court's refusal to reconsider an injunction blocking President Trump's first immigration order even as the sprawling, ideologically diverse court prepared to hear the inevitable appeal of a Hawaii federal court's injunction against the President's second executive order.
Ninth Circuit Judge Alex Kozinski, who joined a five-judge dissent earlier this week attacking the majority for failing to approve an en banc appeal of a Washington judge's injunction against the first Trump order, emerged in full-throated howl in a new dissent issued yesterday. By letting the earlier order stand, Kozinski wrote, the court's reasoning -- that judges can look to a presidential candidate's campaign statements for evidence of religious bias -- is "spreading like kudzu" through the judiciary, inspiring "a scavenger hunt for statements that a clever lawyer can characterize as proof of a -phobia or an -ism, with the prefix depending on the constitutional challenge of the day."
Eager research assistants can discover much in the archives, and those findings will be dumped on us with no sense of how to weigh them. Does a Meet the Press interview cancel out an appearance on Face the Nation? Does a year-old presidential proclamation equal three recent statements from the cabinet? What is the appropriate place of an overzealous senior thesis or a poorly selected yearbook quote?
A three-judge panel on the Ninth upheld the nationwide stay of the first Trump order banning entry for citizens of seven majority-Muslim nations, citing the religious bias the President had expressed against Muslims on the campaign trail. Kozinski and the other dissenters would have the Ninth Circuit hear an appeal of that decision, known as en banc, before an expanded 11-judge panel. He said its reasoning was "peculiar" and represented a "strange state of affairs." But Trump replaced his first plan with a revised executive order, this time executed with the obvious assistance of experienced Justice Dept. attorneys, that restored the rights of aliens with visas and residency permits to enter the country and eliminating Iraq from the list of affected nations. Nevertheless, federal judges in Hawaii and Massachusetts issued injunctions against the second order, citing Trump's pre-election statements that he was seeking a "Muslim ban" to justify a finding of religious bias in the order.
Kozinski's typically colorful prose drew withering criticism from two of his fellow judges, who said he was needlessly flogging a procedurally dead horse. In an unusual ad hominem slap at a colleague, Judge Stephen Reinhart said "Judge Kozinski’s diatribe, filed today, confirms that a small group of judges, having failed in their effort to undo this court’s decision with respect to President Trump’s first Executive Order, now seek on their own, under the guise of a dissent from the denial of en banc rehearing of an order of voluntary dismissal, to decide the constitutionality of a second Executive Order that is not before this court."
"That is hardly the way the judiciary functions," Reinhart wrote. "Peculiar indeed!"
Judge Marsha Berzon also criticized Kozinski, saying he was using the pretext of the court's refusal to hear an appeal by a full 11-judge panel to attack the reasoning of his fellow judges. The Trump administration never appealed the first order, she wrote, so there was no reason for Kozinski to criticize the court for refusing to hear an appeal of a case that has become moot.
"There is now no live controversy before our court regarding either the merits of the underlying case or the propriety of the original restraining order," Berzon wrote. She then criticized Judge Jay Bybee, author of the previous dissent, for relying on the 1972 Supreme Court decision Kleindienst v. Mandel to say the executive order was above judicial review. Trump's first order stripped entry rights from thousands of aliens holding valid visas and residency permits, she wrote, while Kleindienst dealt only with aliens on foreign soil with no such rights.
"There will be ample opportunity, and probably soon" to revisit the question of whether courts can block a presidential order on immigration, she wrote, referring to the decision of U.S. District Judge Derrick Watson in Hawaii to block the revised executive order on religious Establishment Clause grounds, which the government says it will appeal. "So my dissenting colleagues should not be engaging in a one- sided attack on a decision by a duly constituted panel of this court."
Kozinski said the time for that fight is now. Watson cited the Ninth Circuit's reasoning in his decision and "the panel still sows chaos by holding `that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.'"
This is folly. Candidates say many things on the campaign trail; they are often contradictory or inflammatory. No shortage of dark purpose can be found by sifting through the daily promises of a drowning candidate, when in truth the poor shlub’s only intention is to get elected.
He went on to cite in a footnote a story, "doubtless apocryphal," about how Franklin Delano Roosevelt gave conflicting speeches on the campaign trail on important issues depending on which way his advance men told him a given town was leaning. Then, quoting Trump himself, he says "we’ll quest aimlessly for true intentions across a sea of insults and hyperbole. It will be (as it were) a huge, total disaster."
