The policies of President Donald Trump are certainly controversial, and it seems, based on information from POLITICO, that even the judiciary are not immune to feeling those impacts.
Following Trump signing perhaps his most controversial piece of policy – an executive order banning travel, immigration and refugees from seven Muslim-majority countries – it was challenged in court and deemed unconstitutional. The highly discriminatory order was shot down in the 9th Circuit Court of Appeals, which ultimately led Trump to re-draft the order. In the re-drafted version, citizens of Iraq are removed from the ban, but citizens of the six remaining Muslim-majority countries are still prohibited from obtaining a visa for the United States for 90 days. Further, all refugees will be refused entry for 120 days.
This initial ruling, which indicated that Trump would not be permitted to re-instate his ban did not go over smoothly or with any true consensus among the judges. On Wednesday, judges of the 9th Circuit not involved in the ruling recorded their disagreement with the ruling. By Friday, five conservative judges had filed their opposition.
One of these judges, Judge Alex Kozinski asserted their position in the following statement:
‘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.’
In response, Judge Stephen Reinhardt accused Kozinski of strategically timing the release of that statement to interfere with litigation relating to Trump’s revised ban:
‘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. Peculiar indeed!’
Judge Marsha Berzon, also of the 9th Circuit Court of Appeals, acknowledged a similar sentiment, writing:
‘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. All the merits commentary in the dissents filed by a small minority of the judges of this court is entirely out of place.’
‘My dissenting colleagues should not be engaging in a one-sided attack on a decision by a duly constituted panel of this court. We will have this discussion, or one like it. But not now.’
Kozinski then retaliated publically by accusing these coworkers of actively trying to slant the public debate:
‘My colleagues’ effort to muzzle criticism of an egregiously wrong panel opinion betrays their insecurity about the opinion’s legal analysis.’
President Trump, as a part of his Nashville post-election rally, recommitted himself and his administration to the pursuit of upholding the ban. This means, inevitably, he has intentions to appeal this ruling by the 9th Circuit.
‘This ruling makes us look weak, which, by the way, we no longer are. Believe me. We’re going to fight this terrible ruling. We’re going to take our case as far as it needs to go, including all the way up to the Supreme Court.’
If there’s anything Donald Trump’s six bankruptcies have shown us, it’s that he is capable of giving up and quitting while he’s behind – he just needs to be shown unequivocally that this ban will not succeed.
Feature Image via Getty Images/Elijah Nouvelage.