There are various reports confirming that Justice Anthony Kennedy has told staff that he is seriously thinking of resigning and has notably not selected clerks for the October 2018 term. That raises some intriguing issues, including how such a vacancy would play in the midterm elections when there are 33 seats up for grabs in the United States Senate. The vacancy could be used to rally conservatives and liberals alike. As for Kennedy, it could be the difference between a lasting and short-lived legacy.
It was back to the Supreme Court for me this week. An unusually sleepy end of the October 2016 term, except for gossip of a potential retirement (Kennedy, not Ginsburg, this time), came to a dramatic end when the Chief Justice announced in the final minutes of the Court’s last day that they would hear the travel ban/pause cases next term.
There were two clear victories on Monday with this announcement that the Justices would hear the government’s cases defending President Trump’s two executive orders. One was for an imam named Dr. Ismail Elshikh, whose mother-in-law in Syria will now be able to travel to the United States. The other went to John Doe, an anonymous lawful resident who has been trying to get his wife home from Iran. Their victories came in the form of exceptions to the orders which allow their families to be reunited.
The rest of the Court’s 13-page order largely holds onto the spirit of the executive orders issued by the President, with some caveats.
Using the text of the decision, below is what the Supreme Court said in the grant, followed by the potential effects of those decisions, what all this means, and what happens next.
Below is my column in the Hill Newspaper on the Supreme Court order lifting the stay over the Trump immigration order. With the exception of those with bona fide relationships, the Trump Administration has the authority to enforce its travel limitations. As discussed earlier, the order could prove not the next but final chapter of the immigration controversy given the 90 day period set under the Trump order. However, a more immediate issue of concern should be the prior coverage and court decisions leading up to the unanimous order of the Supreme Court.
The victory of the Trump Administration in securing the lifting of much of the injunction on the immigration order consumed much of the analysis yesterday. The Court voted unanimously to lift the injunction for every one except those with “bona fide relationships” in the United States. The latter exception was a bit incongruous with the overall deference to the Executive Branch and led three justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — to dissent. They would have lifted the ban without exceptions. What was most interesting however was what was not in the order: a hearing date for July. The reason is that it was not requested by the Trump Administration. Given the 90 days expiration of the order, that leads to the question of whether this appeal is a case of “planned obsolescence.”
The Supreme Court handed down a stinging defeat for the Trump Administration in a unanimous decision in Maslenjak v. United States, where the Administration sought to strip an immigrant of U.S. citizenship over a false statement made on an immigration form. In a decision by Justice Elena Kagan, the justices declared that the government could not strip citizenship from Divna Maslenjak because she falsely stated that her husband had not served in the Bosnian Serb army in the 1990s. Notably, the Obama Administration had taken the same hard position in the case and the Trump Administration continued that position on the appeal.
Today I will the great honor of serving as the inaugural speaker at the W. Eugene Davis Lecture in Lafayette, Louisiana. This event holds a particular personal meaning for me because I clerked for Judge Davis on the Fifth Circuit in the late 1980s. Serving as his clerk was the single most transformative decision that I have made in my professional life. The clerkship started a lifelong friendship that I cherish to this day. Judge Davis is adored by everyone who has worked with him for his unflagging decency, civility, and integrity. When I think back to my time in his chambers, I realize how much the experience — and Judge Davis — shaped my views of legal ethics, professionalism, and civility. This lecture is a fitting tribute to a man who served justice for decades as a trial judge and later an appellate judge. He is the classic and genuine judicial article. He still relishes the simple task of judging — fairly and honestly. He has spent his lifetime eschewing ideology in favor of resolving cases in an unbiased and consistent manner. He is my ideal of what everyone judge should strive to be. He remains a humble and decent man who seeks to do justice. That is why this lecture series is such a fitting testament to the legacy of W. Eugene Davis.
For many weeks, I questioned the need for a Special Counsel in the Russian investigation because it seems like a coverup in search of a crime. I still do not see the evidence of a crime and simply saying “collusion” does not supply an actual crime. However, when President Donald Trump fired James Comey, I supported the appointment of a Special Counsel to investigate obstruction of justice, even though I remained skeptical of the basis for an actual obstruction charge. I still fail to see the compelling basis for an obstruction case without stretching the criminal code to the breaking point. Nevertheless, I continue to support the need for an independent investigation.
The investigation of a sitting American president however must itself be beyond question as to any bias or influence. For that reason, I have been questioning the propriety of Rod Rosenstein to continue in his current position vis-a-vis the Russian investigation. From the outset, Rosenstein seemed to me to be an inevitable and important witness. Ironically, the recent leak magnified this problem. The leak seemed calculated to protect Mueller from being terminated by publicly identifying Trump as a possible target. However, whatever benefit the leak brought Mueller, it undermined Rosenstein. If Mueller is investigation Trump for obstruction, Rosenstein should immediately recuse himself.
It is not clear if Mueller has an equal conflict of interest. There is reason to be concerned. If Mueller discussed the Comey’s termination with Trump as a candidate for the next FBI Director, he might also be considered a witness in any obstruction investigation. It would seem highly material to the investigation to learn of how Trump described his decision and what he said (if anything) to Mueller about the ongoing Russian investigation. At a minimum, the Special Counsel should address what is a reasonable question about his own knowledge of (and participation in) any meetings with Trump on the Comey termination and the Russian investigation. I do not agree with the campaign to discredit Mueller and strongly object to attacks on his character. I believe Mueller to be a person of integrity and I hope that he recognizes that such a meeting raises some legitimate questions that should be addressed.