by Josh Gerstein · March 17, 2017
In the wake of the 9th Circuit ruling, President Donald Trump signed a redrafted, scaled-down version of his first order. | Getty
Jurists trade charges and counter-charges over ruling that kept block on executive order.
President Donald Trump’s travel ban has triggered an unusually caustic public spat among the judges of the federal appeals court that first took up the issue.
The disagreement began to play out publicly Wednesday when five 9th Circuit Court of Appeals judges publicly recorded their disagreement with a decision three of their colleagues issued last month refusing to allow Trump to reinstate the first version of his travel ban executive order.
The fight escalated dramatically on Friday with the five Republican-appointed judges filing another withering attack on the earlier opinion and two liberal judges accusing their conservative colleagues of trying to make an end-run around the traditional judicial process.
In the new opinion, Judge Alex Kozinski blasted the earlier ruling for essentially ignoring the fact that most of those affected by Trump’s initial travel ban have no constitutional rights.
“This St. Bernard is being wagged by a flea on its tail,” Kozinski wrote, joined by Judges Carlos Bea, Jay Bybee, Sandra Ikuta and Consuelo Callahan.
Kozinski’s opinion harshly criticized the earlier 9th Circuit decision for blessing the idea that courts could take account of Trump’s campaign-trail statements vowing to implement a Muslim ban.
“My colleagues err by failing to vacate this hasty opinion. The panel’s unnecessary statements on this subject will shape litigation near and far. We’ll quest aimlessly for true intentions across a sea of insults and hyperbole. It will be (as it were) a huge, total disaster,” Kozinski said, in an an apparent tip of the hat to Trump’s bombast.
That didn’t sit well with Judge Stephen Reinhardt, who accused his colleagues of trying to affect the ongoing litigation over Trump’s redrafted executive order.
“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,” wrote Reinhardt, an appointee of President Jimmy Carter. “That is hardly the way the judiciary functions. Peculiar indeed!”
Another liberal 9th Circuit judge, Marsha Berzon, weighed in Friday with a more restrained rejection of her colleagues’ efforts to undermine the earlier ruling.
“Judges are empowered to decide issues properly before them, not to express their personal views on legal questions no one has asked them. There is no appeal currently before us, and so no stay motion pending that appeal currently before us either,” wrote Berzon, an appointee of President Bill Clinton. “All the merits commentary in the dissents filed by a small minority of the judges of this court is entirely out of place.”
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“My dissenting colleagues should not be engaging in a one-sided attack on a decision by a duly constituted panel of this court,” Berzon added. “We will have this discussion, or one like it. But not now.”
Kozinski responded by accusing his liberal colleagues of trying to silence the court’s public debate on the issue.
“My colleagues’ effort to muzzle criticism of an egregiously wrong panel opinion betrays their insecurity about the opinion’s legal analysis,” wrote Kozinski, an appointee of President Ronald Reagan.
In the wake of the 9th Circuit ruling, Trump signed a redrafted, scaled-down version of his first order. The second order bans issuance of visas to citizens of six majority-Muslim countries for 90 days and shuts down refugee admissions from across the globe for 120 days.
Key parts of Trump’s revised travel ban executive order were blocked earlier this week by judges in Maryland and Hawaii, On Friday, the Justice Department appealed the Maryland judge’s order to the Richmond, Virginia-based 4th Circuit Court of Appeals. No appeal has been filed yet of the Hawaii order, which would be appealed to the 9th Circuit.