Wednesday, April 26, 2017
President Trump's Problems with the Ninth Circuit: An Alternative Theory; He Angered the Brethren by insulting Judge Curiel
President Trump’s Problem With Ninth Circuit Judges: An Alternative Theory President Trump is getting skewered by federal district judges in Seattle, Hawaii, and now San Francisco as well as the Ninth circuit. The ultra-liberal Ninth Circuit is judicially trashing the Trump Administration. The judges either did not read or consider the law, the statutes, or precedence. Judge Robart in Seattle and Judge Orrick in San Francisco looked outside the record to consider campaign statements by candidate Trump in striking down the immigration and sanctuary cities orders. That is not judicially appropriate! The district judges know their anti-trump decisions will almost automatically be affirmed by the Ninth Circuit. The Ninth Circuit appellate judges know the Supreme Court cannot hear all their bad decisions. Even if reversed, the preliminary injunctions will stay in effect for years. Just blame it on the liberal justices. Let me suggest that another reason is also behind their anti-Trump animus. It goes back to law school at the University of San Francisco in the late 1960”s. The Jesuit USF was considered a “local” law school in the vernacular of the times unlike the prestigious national law schools. We were taught the law rather than policy. We learned about the Courthouse and not White Shoes. We also knew that our future was not in the Wall Street firms. Heller Ehrman, Brobeck, and Thelan, now all defunct, would not interview us. That was fine; we learnt the law. Several were destined to become incredible trial lawyers. Thus, we were also taught the realities of practicing law. One was that when you tried a case outside your jurisdiction, be sure to retain local counsel to sit at counsel’s table. Else you will be home towned. The second lesson was that judges were a “fraternity,” now a “fraternity and sorority.” They stick together. Even if initially appointed to the bench, California judges must stand for reelection. Except for the state Supreme Court justices, the elections are contested. The lesson was “Don’t run against a sitting judge, unless you expect to win.” Otherwise the judges will consistently rule against you. The problem President Trump faces with the federal judges on the West Coast is that he “took” one of them out during the election. Federal District Judge Gonzalo P. Curiel, sitting in San Diego, issued rulings against the Trump defense in the Trump University litigation. Donald Trump was unhappy with these rulings. Judge Curiel is a second generation American of Mexican descent. He was born, raised, and educated in Indiana – a Hoosier. Candidate Trump said of Judge Curiel at a May campaign rally in San Diego: “This [case] should have been dismissed on summary judgment easily. Everybody says it, but I gave a judge who is a hater of Donald Trump. He is a hater. His name is Gonzalo Curiel …. “We are in front of a hostile judge. The judge was appointed by Barack Obama …. “So what happens is the judge, who happens to be, we believe Mexican, which is great ….” Candidate Trump continued in this vein in the upcoming days. He asserted Judge Curiel had an “absolute conflict” because of his Mexican heritage: “Let me just tell you. I have had horrific rulings. I’ve been treated very unfairly by this judge. Now, this judge is of Mexican heritage. I’m building a wall, OK? I’m building a wall.” He alluded to Judge Curiel being in La Raza. Donald Trump was roundly criticized for his comments about Judge Curiel. Must people have forgotten these statements from 11 months. I believe Judge Curiel’s brethren in the Ninth Circuit have not. It's not a conspiracy of the judges - just the ethos and mores of the Bench.