I previously discussed my surprise over the clumsy performance of the Justice Department in defending the Trump executive order on immigration. Those concerns were magnified after the oral argument before the Ninth Circuit that was made available on YouTube. The performance by August Flentje, special counsel to the assistant U.S. attorney general, was surprisingly lackluster and seemingly ill-prepared. The shaky start that I described earlier seems now to be seismic as the Justice Department stumbles toward a ruling that can come as early as today. As Flentje observed during his uninspired argument “I’m not sure I’m convincing the court.”
The questions by the panel seemed to largely favor the challengers though that can be a reflection of the highly favorable standard for the review of a temporary restraining order. Nevertheless, Judge Richard Clifton, a George W. Bush appointee, expressed skepticism over the reference to this order as a “Muslim ban.” He noted that the moratorium on entry from the seven targeted nations affected only 15% of the world’s Muslim population: “I have trouble understanding where we’re supposed to infer religious animus when in fact the vast majority of Muslims would not be affected.”
Nevertheless, as predicted, the baffling statement of former New York City Mayor Rudy Giuliani that Trump wanted a “Muslim ban” were used by challengers. Giuliani seriously undermined the order with his interview and is being credited by challengers as one of their greatest assets. I do not believe that Giuliani’s ill-conceived comment should given much weight by the court but it was raised during the argument.
William Canby, a Carter appointee, and Judge Michelle Friedland, an Obama appointee, seemed to hammer the Administration harder with their questions — questions that the Administration failed to effectively answer despite their great predictability. Friedland particularly pressed the Administration on its basis for picking these seven countries: a line of inquiry that many judges would view problematic if the court is viewed as second guessing such national security determinations.
Once again, I hope that Congress took note of the roughly 137,000 people who listened to the argument live and the many more listened on various television channels, — another example of why the public should be allowed to watch arguments remotely before appellate courts, including the United States Supreme Court.
If the questions are a reflection of the direction of the panel, it would seem most likely that the panel will refuse to overturn Judge Robart and likely send the case back for a final determination and opinion. The Justice Department would then go to the Supreme Court but Gorsuch may not be on the Court when the petition comes before it. That would leave the current eight-member Court unless the confirmation is moved forward with dispatch.