Thursday, February 9, 2017
The Democrats New Strategy: The Ninth Circuit versus President Trump
The Democrats are struggling to find a successful strategy to confront President Trump and the Republicans. Boycotts, marches, demonstrations, the occasional riot, speeches, petitions, filibusters, slow walking cabinet nominees, threats have failed to stop the Republicans. They won. As President Obama once said: “I won.” He also said “Elections have consequences.” Daily attacks by the media, celebrities, late night TV hosts, and academics as well Saturday Night Live have not dented the President’s agenda. The teacher unions did not block the confirmation of Betsy DeVos as Secretary of Education. The Civil Rights Movement did not stop the Senate’s approval of Senator Sessions as Attorney General. Andrew Puzder will undoubtedly become Secretary of Labor, Congressman Tom Price as Secretary of Health and Human Services, Greg Pruitt as EPA Administrator, Dr. Ben Carson to Housing and Urban Development, Steve Mnuchin to Treasury, and Judge Neil Gorsuch will be on the Supreme Court soon. Accusations, calumnies, contempt, defamation, denunciations, expletives, excoriations, fact checkers, fear, harangues, mischaracterizations, misrepresentations, rants, raves, and threats will not stop the process. Elections have consequences. Cries of fascism, racism, and sexism don’t change the outcome. The Republicans held the Senate last November. The votes may often be along party lines, but 52 will beat 48 every time. 50 with the Vice President will defeat 50 without. The Democrats have been flailing for three weeks, but may have now found the strategy to trump Trump. The party of trial lawyers will unleash the lawyers, led by a few state attorney generals. They will file scores of law suits in favorable jurisdictions, preferably in the Ninth Circuit, looking for a pliant district court judge and court of appeals. The Ninth Circuit is notoriously liberal. Both the district court and appellate judges in the coastal states, whether appointed by Democrat or Republican Presidents, veer to the left, the far left, of the political spectrum. The reason is because of the Senate custom known as Senatorial courtesy. The two Senators from each state have a veto power over the appointment of federal judges who will sit in their states. California, Hawaii, Oregon, and Washington have consistently elected liberal Democrats for decades. California last saw a Republican Senator in 1992, Oregon in 2009, and Washington in 2001. Very few conservatives made it through their gauntlet in recent years. Conversely, conservative judges emerge from Alaska, Arizona, Idaho, Montana Nevada, and Utah, but the population and the largest number of federal judges are in California. The Ninth Circuit sits in San Francisco, Pasadena, Portland, and Seattle. The liberal/progressive judges do not believe in the Rule of Law but rather what until recently was referred to as the Rule of Man. They do not feel bound by the Constitution, which they will meld to their wishes and whims. They are not restricted by statutes or precedence. Nor often by the facts. They believe they can judicially legislate as they wish, which is usually on the progressive side. Thus, they have become politicians masquerading as judges. The bias was clear in the unreasoned, specious decision by Judge James Robart in issuing an injunction against the temporary immigration ban after only a few minutes of a hearing. The bias was further made clear by the hostile questioning by the two liberal judges on the appellate panel hearing the appeal. These three judges were not interested in the law, either constitutional or statutory, which grants the President vast powers in immigration cases. The starting legal premise is simple. Non-citizens have no constitutional or statutory right to enter the United States. The second premise is that both the Constitution and statures bestow power on the President to exclude aliens from entering the United States. My guess, based on the makeup of the three judge panel and the harsh interrogation of the government’s attorney, is that the decision will be 2:1 in upholding Judge Robart’s injunction. The Ninth Circuit was the most conservative when I was in law school, but that flipped under President Carter, and has only become increasingly more progressive since then. It is often to the left of the Supreme Court’s progressive wing. The Ninth Circuit has a well-earned reputation as being consistently, but not always, the most overruled court of appeals by the Supreme Court – not just in the number of decisions, but in the percentage. Here’s some statistics that tell the story about reversal rates of the Ninth Circuit by Supreme Court term: 2015-16 8/11 80% 2014-15 10/16 63% 2013-14 10/11 92% 2012-13 10/12 86% 2011-12 17/24 71% 2010-11 19/26 79% 2009-10 15/18 60% 2008-09 13/16 81.3% 2007-08 8/10 80% 2006-07 18/21 85% 2005-06 15/18 83.3% 2004-05 16/19 84% 1998-99 13/18 72% 1997-98 28/29 96.6% Roughly 80% of the Ninth Circuit’s opinions reviewed by the Supreme Court from 1999-2008 were reversed by the Supreme Court, A large number of the Supreme Court reversals were unanimous or per curium (also unanimous opinions), which means that not even one of the liberal justices on the Supreme Court could agree with the Ninth Circuit opinionsThe ninth Circuit was that far outside of the judicial mainstream. The obvious question is why do the Ninth Circuit judges persist in consistently being outside the judicial mainstream? The answer is because the Court usually decides between 90-100 opinions annually. Judge Steven Reinhardt, the most activist and reversed judge on the circuit, said it best “They can’t catch them all.” His wife is the former executive Director of the ACLU of Southern California. My predictions for the Ninth Circuit: 1 There are currently 4 vacancies on the court. President Trump will not appoint and the Republican Senate will not confirm liberal Democrats to the Court; 2 Momentum is building to break up the Ninth Circuit. It will succeed.