Trump Has a Judge Problem: Court to Hear ‘Ban’ Case Tuesday

President Trump has problems with judges. This is not news.

The Ninth Circuit Court of Appeals will hear oral arguments Tuesday at 6 p.m. ET after receiving a brief from the U.S. Department of Justice seeking to remove the injunction granted by a Washington State federal judge.

It’s a good thing that Trump never went to law school and joined the bar. That tweet would be a hell of an argument. “Bad!”

But in fact, Trump’s problems with judges aren’t invented. Well, sometimes they are, like with Judge Gonzalo Curiel. But this time, at least, the problem isn’t Trump’s fault. His “refugee ban” executive order is legal and in fact above board and using the same standards and laws President Obama used in 2011.

The left went shopping for a judge, as cause-based litigants looking for a squeeze will do. And as usual they settled on the Ninth Circuit as the appellate jurisdiction. They found Judge James Robart.

Last year, Robart presided over a case alleging excessive force by Seattle police brought by the Obama administration’s Justice Department. During a hearing, he used FBI statistics to note that police use of deadly force in cities in the U.S. involved 41 percent of black people, despite their being only 20 percent of the population living in those cities.

Robart took a breath and said, “Black lives matter.”

Robart was a G.W. Bush appointee. You see, there’s a whole lot of federal bench openings, and a line of state judges, federal prosecutors, and other qualified jurists who wish to obtain the patronage of a lifetime federal judgeship. Hundreds of them.

There are plenty of liberal federal judges appointed by both parties, and smart activists know who they are. Robart was the go-to guy if you needed an injunction against the federal government for an immigration executive order.

Trump is right to have a problem with that. He’s not anywhere in the area code of right to use the “Bad!” argument. But what’s going to be really funny is how the Ninth Circuit pretzels itself to come up with an equally absurd argument to uphold Robart’s injunction.

I mean, they can’t really argue the law, because Trump’s EO is within the law.

In their brief, Justice Department lawyers write that the executive order is “a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees.”

They can’t really argue the facts, because, well, the list of nations came mostly from the Obama administration.

So they’ll argue some invented harm, or religious persecution. Because Muslim countries that have expelled just about everyone else except Muslims are being discriminated against, not all, mind you, but 7 of them.

Lawyers for Washington state had argued that the executive order hurt residents and businesses in Washington, along with students and faculty in the state university system. The state also argued the ban is unconstitutional because it discriminates against Muslims.

How those lawyers can argue this with a straight face is beyond me. I suppose by some “spooky action at a distance” students in Spokane can be harmed by immigrants from Syria denied entry to the U.S.

But the Ninth Circuit, upon hearing this magical argument, will be compelled to find that Trump has indeed harmed the fabric of the universe by his “refugee ban” and therefore must be enjoined from further creation of space-time paradoxes.

I suppose that by some judicial miracle or epiphany the court could lift the injunction. I would be surprised if that happened. It’s probably heading to the Supreme Court, where  I think it will sit while Judge Gorsuch’s nomination is considered.

Trump has a problem with judges, and in this case, there’s no question the problem isn’t in his mind.

About the author

Steve Berman

The old Steve cared about money, prestige, and power. Then Christ found me. All at once things changed. But the Holy Spirit produces this kind of fruit in our lives: love, joy, peace, patience, kindness, goodness, faithfulness, gentleness, and self-control. There is no law against these things!

I spent 30 years in business. Now I write and edit. But mostly I love. I have a wife and 2 kids and a dog and we live in a little house in central Georgia.

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