The Judge Who Halted Trump’s Immigration Order Has Made Some Wacky Rulings In The Past
Last night I reported that a federal judge in Seattle, James Robart, has issued a sweeping nationwide order temporarily blocking the Trump administration from enforcing key parts of President Trump’s recent executive order on immigration. Today, we are learning more about that judge . . . and some of it is unsettling.
For example, last August, the Seattle Times reported that Judge Robart had favorably cited the “black lives matter” movement in a ruling on a civil dispute:
U.S. District Judge James Robart, pointedly reacting to the Seattle police union’s rejection of a tentative contract, said Monday he would not let the powerful labor group hold the city “hostage” by linking wages to constitutional policing.
“To hide behind a collective- bargaining agreement is not going to work,” Robart said during a dramatic court hearing he opened by laying out a path for police-accountability reform and closed with an emotional declaration that “black lives matter.”
. . . .
Robart ended the hearing with deeply personal remarks, in which he noted a statistic that showed, nationally, 41 percent of the shootings by police were of blacks, when they represented 20 percent of the population.
“Black lives matter,” he said, drawing a startled, audible reaction in a courtroom listening to the words coming from a federal judge sitting on the bench.
Also troubling are Judge Robart’s attempts to dictate the terms of proposed statutes, based in part on the “expertise” of “consultant” Merrick Bobb, a hack who runs around posing as a police expert when he knows next to nothing. From the Seattle Times story:
During Monday’s hearing, [Judge Robart] provided a blueprint for what he would like to see in the legislation, based on various proposals produced by city officials, the Community Police Commission (CPC) and the court-appointed federal monitor, Merrick Bobb.
My eyes are rolling so hard I could probably knock down bowling pins with them.
But wait, there’s more! Judge Robart also denied a request for a man (“John Doe”) expelled from Amherst to depose and obtain records from a “victim” of sexual assault — records that might show that the woman was the aggressor and that Doe was expelled improperly — because it would hurt the “victim’s” feelings. Robby Soave at Reason.com explains the background:
The incident in question took place years ago, during the late night / early morning hours of February 4-5, 2012. Jones was Doe’s girlfriend’s roommate at the time. Jones went to Doe’s dorm room and sexual activity ensued: Jones performed oral sex on Doe.
But Doe was blackout drunk at the time—a detail that Amherst administrators deemed “credible,” on subsequent review. Of course, it’s questionable whether a blackout drunk student can actually provide the level of consent that Amherst’s sexual misconduct policy requires.
Other factors cast doubt on the idea that Jones was the victim and Doe the perpetrator. After leaving Doe’s dorm room, Jones texted another male student and asked him to come to her dorm room for sex. She also texted a residential advisor about her “stupid” decision to engage in sexual activity with her roommate’s boyfriend. In these text messages, Jones admitted that she was “not an innocent bystander.” She also complained about how long it was taking this second male student to do anything sexual with her. She did not file a complaint against Doe until two years later.
Doe was expelled. He then sued Amherst, and subpoenaed Jones for a deposition and for “documents and records of statements she made about the alleged assault.” Judge Robart denied the request because of Jones’s feelings:
An in-person deposition of boundless scope would impose a substantial burden on Ms. Jones. (Subpoena at 1; see also Resp. at 7 (“Until a deposition begins, it is very difficult to know where it will lead and impossible to predict all the topics that may be explored with a witness.”).) The deposition would force Ms. Jones to relive a night in which she asserts Mr. Doe sexually assaulted her. (See, e.g., Clune Decl. ¶ 3, Ex. 4; Resp. at 6-7.) It would also reraise the subsequent investigation, hearing, and period of publicity that Ms. Jones has endured. (Id. ¶ 3, Ex. 5 at 11-12; Am. Compl. ¶¶ 54, 56.) It takes no leap of logic to reason that a live deposition would impose emotional and psychological trauma upon Ms. Jones.
I would imagine that being expelled over a B.S. allegation would also “impose emotional and psychological trauma” on someone. But when you’re a male accused of sexual assault in a college environment, facts often don’t matter. You’re presumed guilty — and even in a civil proceeding which is all about determining whether you actually did what you were accused of, you’re not entitled to key evidence on that question.
According to this judge.
These decisions do not instill confidence in the judgment of this particular jurist.
We’ll see what happens.
[Cross-posted at RedState and The Jury Talks Back.]
“These decisions do not instill confidence in the judgment of this particular jurist.”
Just this jurist? How much more troubling do you find Robart’s Washington v. Trump decision that say . . . Roe v. Wade? Political grandstanding is a longstanding problem that has compromised the judicial branch for the entirety of my adult life. Probably longer. Robart is no outlier. As I mentioned in an earlier comment, not just Trump, but all Republican are aligned against this Army of Sally Yateses who occupy positions in all branches of government.
Just to give Robarts his due, it is much harder for a federal judge to cover his tracks than members of the legislative branch, where, as Ted Cruz has done yeoman’s work to expose, the political establishments of both parties conspire to give sleaze ball pols political cover. The executive branch’s bureaucracy is the most opaque of all.
ThOR (c9324e) — 2/4/2017 @ 7:15 pmI wonder if “The Good Wife’s” Judge Abernathy (played by Denis O’Hare) was based on him.
http://www.theblaze.com/news/2012/02/20/cbss-the-good-wife-features-judge-praising-occupy-wall-street-i-salute-them/
Kevin M (25bbee) — 2/4/2017 @ 7:20 pmHow much more troubling do you find Robart’s Washington v. Trump decision that say . . . Roe v. Wade?
Roe v Wade listed reasons and attempted an argument. Correct me if I’m wrong, but I can’t find any basis for action stated in Washington v Trump. He was completely out of gas after the spurious standing argument.
Kevin M (25bbee) — 2/4/2017 @ 7:28 pmThe Judge Who Halted Trump’s Immigration Order Has Made Some Wacky Rulings In The Past
“Supposed judge”… believe that was the public description of this jurist by the President of the United States.
DCSCA (797bc0) — 2/4/2017 @ 7:57 pmIt’s almost like the leftists venue shopped looking for the most sympathetic judge they could find.
But they’d never do that because it would damage the confidence of our legal system, right?
Right?
NJRob (0f0e27) — 2/4/2017 @ 8:03 pmYou’d prefer a charade? Would it have been better if Robart invented a right with which to justify his decision?
No, this is far more honest.
ThOR (c9324e) — 2/4/2017 @ 8:06 pmIf jd were here , he’d bring up the Billy Madison clip, he was a partner in a major Seattle lawfirm and his argument would embarrass a one l
narciso (d1f714) — 2/4/2017 @ 8:08 pmThe damage has already been done, if the flood gates have been opened as reported.
Colonel Haiku (2601c0) — 2/4/2017 @ 8:20 pmTake the fellow who attacked the louver yesterday, he was an Egyptian national whose father was a police general, a cleanskin
narciso (d1f714) — 2/4/2017 @ 8:27 pmHere’s a sage opinion about Robart’s decision:
“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”
Do we have any dissenters?
ThOR (c9324e) — 2/4/2017 @ 8:30 pmIts rather to the point, one could debate the argument, but Robart doesn’t provide one
narciso (d1f714) — 2/4/2017 @ 8:34 pm“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”
Well, he IS a judge, so that part I dispute. And the rest of it is too mild.
Kevin M (25bbee) — 2/4/2017 @ 8:47 pmAnd Patterico,
Thank you for posting this thread.
I didn’t realize that the same judge who denied the Amherst student his civic rights was this guy. Proves how far gone he is.
Thanks again.
NJRob (0f0e27) — 2/4/2017 @ 9:47 pmRobart is right up there with Souter and Roberts; lovely go along get along hacks who don’t believe in anything more than their next job. . But for some conservatives losing their minds, Bush Jr. was all set to elevate Harriet Meyers to SCOTUS and only wound up picking Alito under duress. The Bushes talked a good game, but had to be dragged kicking and screaming to do anything conservative. Comprehensive immigration reform, no new taxes, the US military being sued to restore the Emir of Kuwait, the Saudis being allowed to flee after 9/11, Dubai ports, huge deficits, endless pointless stupidly fought wars. You have good reason to doubt Trump’s bonafides, but the Bushes were in ways great and small worse. And because they had good manners, we let them get away with it.
And they never fought back. If you want to know why DJT appeals to so many of us, that’s a big part of it. He does go too far; the president doesn’t need to respond to every slight. But it’s refreshing as hell to FINALLY have a president who doesn’t take any crap.
Bugg (08921e) — 2/4/2017 @ 9:55 pmBugg–
This order was so bad that it would have offended Souter. It might even offend Sotomayor.
Kevin M (25bbee) — 2/4/2017 @ 11:41 pmOff topic but if you can find it on YouTube catch this evening’s SNL spoof of a Sean Spicer press briefing.
It’s likely one of the funniest skits they’ve done in years.
DCSCA (797bc0) — 2/5/2017 @ 12:15 amThe WEEPING LIBTARD JUDGE had really really really GROOVY BOW TIES.
GUS (30b6bd) — 2/5/2017 @ 12:17 amThis is the funniest SNL skit in years- Melissa McCarthy as Sean Spicer doing a WH Press Briefing.
https://www.youtube.com/watch?v=fdewIJ0C0CQ
DCSCA (797bc0) — 2/5/2017 @ 12:54 amSad to see a prosecutor forgetting which side is the plaintiff and which side the defense. Some pretty weak sauce legal analysis of the case, I must say.
Jerryskids (3308c1) — 2/5/2017 @ 6:24 amCanby one of the appeals court judges thought the Brady act constitutional
narciso (d1f714) — 2/5/2017 @ 6:41 amCourt of Appeals refuses to reinstate Trump’s temp travel ban?
Colonel Haiku (2601c0) — 2/5/2017 @ 6:41 amNot surprising one needs to draw an insight straight like the Romanian judge
narciso (d1f714) — 2/5/2017 @ 6:47 am#14 Bugg, yeah Bush 41 famously mocked “the vision thing.” And his promise for a “kindler, gentler nation” was an inference that maybe Reagan had gone too far.
Bush 43 did irreparable damage by not fighting back against any of the ridiculous charges made against him during his Presidency.
Cruz Supporter (102c9a) — 2/5/2017 @ 7:06 amThe ironic part is that Bush 43 decided to challenge then-Governor Ann Richards in 1994 as payback for her nasty keynote address at the 1988 Democrat Convention where she trashed then-Vice President Bush.
9. narciso (d1f714) — 2/4/2017 @ 8:27 pm
And he was a resident of the United Arab Emirates.
At least one person from the Sudan who was stopped from entering the U.S. actually live in Saudi Arabia.
The Gulf states have many non-citizens there on long term, but revocable, visas. (Kuwait famousely expelled all “Palestinians” in 1991. They had been treated favorably during the Iraqi occupation., and their political leadership had supported Iraq.)
The New York Times has a front page story today, saying lone wolves aren’t really lone wlves, based on a terror cell created in India (that was caught before they did anything) Not one person sent by ISIS actually went to India. It was all done over the Internet.
Sammy Finkelman (9974e8) — 2/5/2017 @ 7:23 amthis judge at 1846 E. Shelby st. Seattle ,wa also engages in third party payoffs with Sterling bank and Nor Wes Construction Inc. land is such an easy way to hide million dollar pay-offs.
seattle (558ca0) — 2/5/2017 @ 7:59 amRobert Barnes at LawNewz argues Seattle Judge is Wrong and Overreached With Nationwide Injunction on Travel Ban based on 9th circuit and SCOTUS precedents.
crazy (d3b449) — 2/5/2017 @ 8:01 amLets do away with the “Bush Appointed” meme. Here’s how it works, and I know because I was close to people involved in the process in Calif in 2000 after Bush was elected.
Yes, District Court judges are appointed by the President and confirmed by the Senate.
Yes, at that time there was a “blue slip” procedure in the Senate where a Presidential appointee to just about any post needed to have “blue slips” from both home state senators sent to the Chairman of the Committee that had jurisdiction over the appointment. Until both blue slips were received, the nomination would not be taken up for vote in the Committee.
The blue slip process was, in essence, a pocket veto that could be exercised by either home state senator. It was a completely “inside the Senate” process, and the White House had almost no control over it. That custom goes back a long long time, and Senators protected the prerogative of the colleagues to kill a nomination — or at least hold it hostage as a bargaining chip elsewhere — regardless of party.
With regard to DOJ and the courts, the appointees for District Judges, US Attorney, and US Marshall are all pretty much handed to the in-state Senators to submit, regardless of party. There’s a working understanding with the WH Counsel’s office of the new President that the only names that will be submitted are names that are expected to be plausible and acceptable to the occupants of the White House. So even where the home state Senator is of a different party than the President, they understand that they are not getting to chose among their own loyalists, but they are getting to pick out who among the President’s loyalist is most acceptable to them.
In California in 2000, you had Feinstein and Boxer as the two Senators. Each set up committees to evaluate and pick candidates for the open district judge slots, US Attorney positions, and US Marshall positions. IIRC, Feinstein took the Eastern District (Sacto), and Central District (LA), while Boxer took the Northern District (SanFran), and the Southern District (San Diego).
By agreement with the WH, each committee had 6 members — 3 appointed by the Senator, and 3 appointed by the in-state Chair of the Bush Campaign, which was big GOP operative behind the scenes in Los Angeles, Gerald Parsky. The agreement was that any nominee coming out of the Comm need 4 votes out of the six — that made sure that whoever got picked received at least 1 vote from the other side.
In addition, the process couldn’t produce just one name — the committee had to send 3 names for every spot to the WH, and the WH got to select from among the 3 names.
In 2000, Washington had as its two Senators Patty Murray and Maria Cantwell. Cantwell was newly elected in 2000. Cantwell was in her second term at the time, and both lived in the greater Seattle area when elected.
Judge Robart spent his entire legal career in one of the bigger firms headquartered in Seattle, Lane Powell, where he worked for 31 years. While he was most likely a registered Republican, Washington is a state with a long history of having GOP politicians of a much more liberal profile.
I don’t know the exact nature of how the Washington Dem senators organized their input on the Presidential appointees. But there is no question that Murray, one of the most liberal members of the Senate throughout her terms, held the blue slip authority over any district court nominee.
So while its true that Robart is a “Bush Appointee”, that doesn’t in any way suggest that he’s a “conservative” jurist, and as this post points out, he’s done a lot in 12 years on the bench to suggest quite the opposite is true.
shipwreckedcrew (56b591) — 2/5/2017 @ 8:16 amThe Administration’s Brief in the matter:
https://assets.documentcloud.org/documents/3452225/The-Department-of-Justice-s-appeal-to-restore.pdf
This part addresses 1182 vs 1152:
Kevin M (25bbee) — 2/5/2017 @ 8:54 amSWC–
From what I read the blue slip rules change a bit from time to time as committee chairmen change. From 2001-2003 the Dems controlled and it was an absolute veto. From 2003-2007 one negative blue slip didn’t kill a nomination.
Do you happen to know what Grassley’s policy is?
Kevin M (25bbee) — 2/5/2017 @ 9:18 amGeorge W Bush picked the wrong administration to stop drinking.
Pinandpuller (f88b8c) — 2/5/2017 @ 9:41 amAmbrose Bierce’s Devil’s Dictionary gives a pretty good definition for a judge: “A lawyer who knows a governor.”
Pinandpuller (f88b8c) — 2/5/2017 @ 9:48 amThe 9th Cir did not “refuse” to overturn the ruling. It refused, on a Saturday, to stay Robart’s ruling pending the emergency appeal.
But at the same time it created a very very expedited briefing schedule for the emergency appeal. I think the DOJ papers are due by 3:00 am Monday morning (Midnight in SF), and by 6:00 pm for the States on Monday. Its likely they won’t hold a hearing, because they are simply being asked to review the District Court’s TRO.
But there are now 2 different written opinions out which come to different conclusions, and while the 9th will only be making a decision on the Washington decision, they will certainly be aware of the Boston decision as well, with its very detailed legal analysis that comes to the opposite conclusion as Robart. And which, in my view, uses the correct standard for “Rational Basis” review of an Equal Protection claim — unlike Judge Robart who screws it up completely, and does so on video so there’s no mistaking it.
It starts at 39:15 of the video where he launches into the specious line of reasoning being pushed by the opponents that there have been no arrests of anyone from the 7 countries for terrorist activity, and that fact undermines the stated rationale for the EO which is to protect the US from terrorist threats that might involve immigrants from those countries.
While I think Ms. Bennett, the Civil Division attorney who appeared did ok, she’s clearly not a top level oral advocate in appellate practice. Given that this issue has now evolved nationwide, I expect the next round of arguments in the Circuit Courts of appeal will all come from the Solicitor’s Office. They don’t have a big staff, and focus mainly on Supreme Court cases, but they do watch closely the cases percolating in the Appeals Courts because much of their Supreme Court work comes from issues where there are conflicts in the decisions of the various Appeals Courts. The are skilled oral advocates — much better than Ms. Bennett, who wasn’t bad, she just wasn’t on their level — and will much more effectively present the controlling precedents from various cases that are relevant. And they know all the Supreme Court precedents from immigration law backwards and forwards. If Washington state sticks with the same guy who argued before Robart, he’ll get torched.
Back to Robart — what he screws up royally is the proposition he advances that under a “Rational Basis” review, its his duty and obligation to look at the rationale for the EO as expressed in its language, which supports the classification which is under Equal Protection scrutiny, and then make a determination about whether there is evidence which supports the rationale. If such evidence is lacking, suggesting the stated rationale is a pretext for a different hidden rationale, then the Plaintiffs’ chances of winning are greatly enhanced, and the stated purposes for the order are suspect and not entitled to deference.
That’s pretty much how liberal activists jurists view their role in applying the rationale basis test, and its pretty much how they are uniformly reversed for having done so. It almost always flows from the view of district court judges who are the first in line to “halt” what is claimed to be “illegal” government action.
To be fair to them, as Judge Robart points out, they are confronted with these types of challenges very often. A federal district judge I know, and I worked with a few when they were prosecutors before they were named judges, told me that he spends 90% of his time in the courtroom on criminal cases, and 90% of his time in chambers on civil cases. But the breadth of the subject matter in civil cases that get filed in federal court is simply staggering.
Listen to what Robart says in the last 5 minutes about all the submissions he claims to have read and considered in the short amount of time prior to the hearing. I’m sure it was quite literally hundreds of pages from the parties and the “amici” that filed briefs, which he authorized. Those briefs I’m sure had dozens if not more than 100 cases cited in them. Typically a District Court judge has 2 law clerks working with him — which means they are recent law school grads. He can’t read every case — or even every brief — so he has the clerks read and brief the cases, and he might even have the clerks read and summarize the various amici briefs filed by interested parties.
There is simply no way a single human can read and digest all that Robart claims to have read and digested in advance of the hearing, AND at the same time get everything right. And here he made a very common mistake among lower court judges who misread the standard for “rational basis” review.
The order he produced late on Friday has NO ANALYSIS in it for any of the decisions he announced, other than on the issue of standing, and he references the out-of-circuit opinion in US v. Texas as the basis for finding standing. IMO this in some way “gives away the game” — he’s using the Texas decision — which doesn’t really support Washington’s claim of standing — to tweak the noses of all the supporters of the EO. IMO he’s saying “Hey, the Texas case said Obama couldn’t do this, so what’s sauce for the goose is sauce for the gander.”
I hope this Order isn’t all he’s going to produce, because this one does little more than repeat his ruling from the bench, and he said he would be putting out a “written decision” for appellate review over the weekend. I presumed that would be a decision that addresses the various equal protection and due process claims raised by Washington in seeking the TRO and Prelim. Inj.
Back to the raional basis test he screwed up. Here is how the Supreme Court has stated a rational basis review is to be conducted, with some initial context for the power provided to the President by Congress over the area of immigration.
Shaughnessy v. Mezei
Significantly, the Boston Judge cited a 9th Circuit case on Rational Basis test in the immigration context — which will be controlling on review of the Seattle case, and should have guided Judge Robart — Ruiz-Diaz v. U.S. It involved 5 year religious worker visas (so much for the argument that religion can’t be considered in visa issuance determinations). Holders of those visas wanted to apply to adjust their status to legal permanent residents.
Note there that the Court found that the government only needed to show “it had concerns about fraud” in the program because of “difficulties in determining which applicants are bona fide religious workers…” It wasn’t required to show through specific anecdotal examples actual cases involving fraud with purportedly religious workers.
Robart’s statement about “zero arrest” of terrorists from the 7 identified countries shows his reasoning slipped into the latter category, rather than focusing on whether the “concerns” about heightened risk associated with individual from the 7 countries was a legitimate governmental “concern.” If yes, that should have been the end of his analysis, the Plaintiff’s are not likely to succeed on the merits, TRO denied.
Mathews v. Diaz (Brennan for a unanimous court)
The language from Mathews about deference to Congressional line-drawing must be considered in the context here of Congress having delegated its authority over immigrant entry to the President.
Here’s the killshot to Robart though: From Heller v. Doe on rational basis review — sorry for length and numerous citations, but they are important to show how well established in the law this doctrine is, and how far outside the doctrine Robart’s decision is (I’ve bolded the critical language):
Ok, that’s your Con Law lesson for today.
Geeze, I ought to do this for a living.
shipwreckedcrew (56b591) — 2/5/2017 @ 9:49 amNarciso
Hey, what do you make of the IT brothers with Arabic sounding names who look to have been up to no good in Congress behind the scenes?
There’s at least one story out there, in The Daily Caller.
Pinandpuller (f88b8c) — 2/5/2017 @ 9:51 amSWC
Is it fair to say that a lot of justices look at their decisions like Amazon reviews?
“This law did not do what I wanted it to do. One star.”
Pinandpuller (f88b8c) — 2/5/2017 @ 10:06 amSWC- you know more than any of us as to the process, and that’s enlightening. But again comes back to the Bushes thinking we’re still in some happy bipartisan, let’s all get along world rather than blood sport. Because if this judge ruled even once in a way that irritated he legal SJW consensus, they would throw BUSH APPOINTEE in his face like a curse word. The Bush worldview is akin to the Looney Tunes cartoon of the sheepdog and the coyote checking in at 9AM, confronting each other all work day and then checking out at 5PM.43 and 45 didn’t really care about limited government nor conservative jurisprudence past getting elected, they simply thought as the establishment they should of course be in charge.
Bugg (08921e) — 2/5/2017 @ 10:08 amI have a question for you– either Pat or shipwrecked crew. We all have a full understanding that Judge Robard is generally on the same political side as many other Federal judges in Cali and (unfortunately) in other states. But from your professional perspective and considering that his ruling here is apparently considered by most experts to be poorly written and unsupported– and that he’s pretty much already known as a loose cannon crank anyway–is there ever a point where these other left leaning judges have enough pride to say ( even in private) “hey, this guy’s ineptitude and sloppiness reflects on us and is embarrassing us. He is hurting our causes rather than helping”.? Or do they so applaud the subversive nature of his tactics to stall the implementation of the EO that nothing else matters?
elissa (1cada9) — 2/5/2017 @ 10:15 amFederal judges feel like people with a peanut allergy who have the power within thousands of square miles to stop everyone else from eating peanuts.
Pinandpuller (f88b8c) — 2/5/2017 @ 10:15 amYes!
Rev. Hoagie® (785e38) — 2/5/2017 @ 10:22 amWhy Federal District Judges are different “animals” from other judges.
1. Lifetime appointment. Same as other federal judges, but their daily working environment makes that feature more salient.
2. They speak mostly for themselves, and not for their colleagues on the same court. Much more independence in what they do because of the volume of their work, and the fact that in 99.9% of their cases, they are the sole judicial authority on their work.
3. Appeals Court Judges always sit in panels of 3, and they function in an environment where they know they speak on behalf of the Circuit Court as a whole when they issue a decision. That is why there is a rule that one panel of 3 judges is not allowed to disregard or over-rule the prior decision of another panel of 3 judges. Each decision is issued on behalf of the entire court, not just the 3 judges on the panel. The court would cease to function coherently if any given panel could issue rulings without deference to prior rulings on the same subject, even where the judges on the latter panel disagree. The process they have for working out issues is resort to an “en banc” court, where a much larger group, consisting of usually 9 judges or the entire Circuit depending on its size, sits to determine if an earlier 3 judge panel decision should be revisited or over-ruled.
4. The Supreme Court hears every case as a 9 justice group (or however many Justices there are), and every decision speaks for the entire court.
This type of collaborative relationship among judges only operates informally at the District Court level, and if a judge wants to work independent of his colleagues on the same court, in a Lone Ranger style, he’s perfectly able to do that. There’s no mechanism that I’ve aware of, or if one exists I can’t remember an example of it ever being used, for the collective members of a Federal District Court bench to step in and overrule an action of a colleague. And there were plenty of wacky decisions in the Central and Northern Districts of Californian over the last 40 years where I’m sure a great number of colleagues on a particular court wanted to reach out and throttle a decision made by another member of the same court.
This is how you get these crazy decisions sometimes from District Court judges who are pretty obviously on a crusade to save humanity from the consequences of government action.
shipwreckedcrew (56b591) — 2/5/2017 @ 10:26 amWoe is us. Thanks for the tutorial swc.
elissa (1cada9) — 2/5/2017 @ 10:35 amElissa at 36:
I swear i had not read your comment when I posted 39, but I think it directly addresses your question.
Yes, there are wacky Federal District Judges, and they generally get wackier the longer they are on the bench and the older they get. They simply become over-indulged with the notions that: 1) They are appointed for life and can do what they want, and 2) they lose any concern for the idea that its embarrassing to get reversed by a higher court for screwing up a ruling.
The second is a huge issue IMO. As a federal district judge moves into his/her 60s and then 70s, its clear that they have no upward mobility. They are simply playing out the string, maybe go senior status (reduced work load, same salary), and simply are no longer concerned about how their work is reviewed by other judges because that review is of no consequence.
Robart knows that as long as this suit is alive in the federal district court in Seattle, it is assigned to him. The only thing the appellate court will do now is review his TRO. All the work on the merits of the case is in front of him. The 9th will either suspend the EO while the trial work is underway, or it will allow the EO to go into effect. Neither really changes the way he would be expected to handle the trial on the complaint filed by the State.
He might well reach the view in the months ahead that the EO is valid and legal, and he might order it enforced. Nothing he did on Friday prevents him from eventually coming to that conclusion once a more complete records is established before him.
What he did on Friday is what a lot of District Court judged do — he simply tried to “freeze the field” but restoring the issue to the point in time just prior to the EO going into effect. In his view, that’s simply preserving the prior status quo until all the questions here can be answered.
But, what might be playing out in large measure is what was feared — that the brief respite in enforcement is being taken advantage of by some who MIGHT have malice in their future intentions, had not yet attempted to enter the US, but now are going to advance their plans in order to slip in while the opportunity presents itself.
shipwreckedcrew (56b591) — 2/5/2017 @ 10:36 amHow the government produced such a great brief in less than 36 hours after the Seattle decision:
A civil division lawyer (not sure which Section) got sent to Seattle to argue before Robart. The entire time she’s gone, the Appellate Section of Civil Division was already at work on various pieces of the brief in anticipation of an adverse ruling. After the decision on Friday, all they needed to do in the next 24 hours was to begin putting the pieces together, and doing the necessary editing to make it address the Seattle decision.
The brief itself has 5 names on it as Attorneys who are making an appearance, PLUS Noel Francisco, the Acting Solicitor General.
And, keep in mind, Sally Yates as Acting AG said the EO could not, and should not, be defended in Court. Stamped herself forever as a political hack not deserving of the job she was given.
shipwreckedcrew (56b591) — 2/5/2017 @ 10:50 amshipwreckedcrew–I admit that having come up through a corporate environment where people (and especially decision makers) who constantly make bad decisions and/or embarrass the enterprise get canned right and left, the entire concept of “lifetime appointment” in government and “tenure” in academia is foreign and something I have a hard time adjusting to.
elissa (1cada9) — 2/5/2017 @ 10:51 amThanks shipwrecked, much of these presentations even in the journal are long on emotion, weak on facts,
narciso (d1f714) — 2/5/2017 @ 11:24 amI would note that the Gov’t brief explicitly makes as part of its argument the effect of Section 1152(a)(1)(B) on the non-discrimination language of 1152(a)(1)(A), and pointing out that the EO is directed at modifying the processes and procedures for issuance of immigrant visas, imposing the temporary suspension of entries as part of that review process.
Trust in content provided by SWC. Its worth every cent you pay.
shipwreckedcrew (56b591) — 2/5/2017 @ 11:47 amRobart knows that as long as this suit is alive in the federal district court in Seattle, it is assigned to him. The only thing the appellate court will do now is review his TRO. All the work on the merits of the case is in front of him. The 9th will either suspend the EO while the trial work is underway, or it will allow the EO to go into effect. Neither really changes the way he would be expected to handle the trial on the complaint filed by the State.
The 9th could accept the administration’s view on standing and order the case dismissed.
Kevin M (25bbee) — 2/5/2017 @ 12:56 pmThat’s very true Kevin.
I am dubious about there PP claim, but I think they will survive for now on their “proprietorship” claim.
shipwreckedcrew (56b591) — 2/5/2017 @ 1:11 pmWell its the only place that has it pinpuller, meanwhile pelosi asks a question no one should be asking?
narciso (d1f714) — 2/5/2017 @ 1:27 pmThis is why senate rules need to go. They used the fact that Washington had 2 Dem senators to block anyone acceptable to Bush, so Bush gave them this moron. Senate rules are a disaster and a way to give more power to senators.
Smarty (0bab40) — 2/7/2017 @ 11:24 amHow about we make the VP job worth something and give the VP 5 votes in the Senate.
Kevin M (25bbee) — 2/7/2017 @ 11:50 amOne of Carson’s aides a awal spoke at a cair conference, sounds like gingruch’s latest thriller, treason
narciso (d1f714) — 2/7/2017 @ 11:56 am@elissa:“lifetime appointment” in government
If you can fire judges whenever you want, you can control their rulings. Congress can impeach federal judges but it’s rare.
“tenure” in academia
When tenure was invented, being an academic was not a “job”. The idea was to free scholars from the necessity of earning a living so they could concentrate full time on their studies. They used to have to collect their lecture fees directly from their students, if they taught, but they didn’t necessarily have to teach (and they don’t necessarily have to now). Research and scholarship are, by most, considered to be worth something, but hard to set a price to and hard for others to evaluate who are not themselves studying the same thing.
Now that colleges and universities consider themselves to be in the business of vocational training, football, collecting government financial aid and confiscating half of research grants as “overhead” I don’t know if I would make the case for tenure. But it made sense at one time, as most of Chesterton’s fences did.
Gabriel Hanna (64d4e1) — 2/7/2017 @ 11:59 am“But, what might be playing out in large measure is what was feared — that the brief respite in enforcement is being taken advantage of by some who MIGHT have malice in their future intentions, had not yet attempted to enter the US, but now are going to advance their plans in order to slip in while the opportunity presents itself.”
– shipwreckedcrew
Of course, there’s no evidence indicating that this will happen. Just fearmongering, which is Trump’s only competency. Which is a low bar, considering how many people in this country are intent on being fearful to begin with.
Leviticus (efada1) — 2/7/2017 @ 12:25 pm