Today at 6pm ET, three federal appeals judges will step into the spotlight in a highly anticipated oral argument over whether to reinstate President Donald Trump’s executive order on immigration and refugees. During the brief, hour-long session in which the two adversarial sides will be given 30 minutes to argue their position by phone, the DOJ will ask the judges to reverse a restraining order issued by a Seattle judge last week that blocked enforcement of the travel ban. The famously liberal Ninth Circuit Court of Appeals, based in San Francisco, is the largest federal appeals court, whose jurisdiction stretches over nine western states. It is also the most overturned court: a startling 79% of its cases were reversed before the Supreme Court.
While a ruling could be made any time after the oral argument, earlier on Tuesday the Appeals Court said it is "not expected" to rule today, and a ruling will "probably" come this week. Either side could appeal the decision to the Supreme Court, or ask for a hearing from a larger Ninth Circuit panel. Earlier in the day, Trump said he has no concerns taking the executive order all the way to the Supreme Court.
But before he does, here are the three judges that the Trump administration will try to convince today to reverse the restraining order issued by Seattle Judge Robart, courtesy of the WSJ:
Judge William C. Canby Jr.
The senior-most judge on the panel was appointed to the bench in 1980 by President Jimmy Carter. A native of St. Paul, Minn., the 85-year-old received his bachelor’s degree from Yale University and his LL.B. from the University of Minnesota. After law school, he spent two years serving in the U.S. Air Force’s legal arm and clerked for Supreme Court Justice Charles E. Whittaker. He later served as a U.S. Peace Corps official in Ethiopia and Uganda.
Judge Canby, who sits in Phoenix, also worked as a special assistant to Walter Mondale, a former Democratic vice president, during his 1966 Senate campaign. Before becoming a judge, he taught constitutional law at Arizona State University and is widely known as an expert in federal Indian law. In a 2-1 ruling in 2012, Judge Canby was one of two appeals judges who halted deportation proceedings for seven immigrants and asked prosecutors to explain whether the immigrants could avoid deportation under new directives from the Obama administration. At the time, some judges and legislators criticized the decision as an overreach of judicial authority.
Judge Canby wrote a unanimous ruling in 2006 that barred the deportation of an Iranian man in the U.S. with connections to an Iranian dissident group that had been designated as a terrorist organization. Immigration officials said the man posed a danger to national security, but Judge Canby wrote that the man was protected from deportation under international human rights law because he is “more likely than not” to be tortured if returned to Iran. While serving on the bench, Judge Canby was also part of the group tasked with brokering a peace agreement between Eritrea and Ethiopia in the late 1990s and early 2000s.
In one of his earlier rulings, Judge Canby in 1988 joined another appeals judge in prohibiting the U.S. Army from excluding people based on their sexual orientation. Many of his rulings have sided with gay rights advocates, including a 1990 dissent where he wrote: “To leave on the books the rule that the government can discriminate against homosexuals whenever it has a rational basis to do so is an invitation to tragedy.”
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Judge Richard Clifton
The Hawaii-based judge, a George W. Bush appointee, sailed through a unanimous Senate confirmation vote in July 2002 despite being a Republican from a largely Democratic state. A graduate of Princeton University and Yale Law School, Judge Clifton has worked since 1975 in Hawaii, first as a clerk on the Ninth Circuit and later as a litigator at one of Honolulu’s oldest and largest law firms, Cades Schutte Fleming & Wright.
The lone Ninth Circuit judge sitting in Hawaii, Judge Clifton, 66, took senior status at the end of last year, which means he is semiretired but still actively sitting on cases.
Judge Clifton has taken part in several contentious immigration cases during this years on the bench. In 2013, he disagreed with two colleagues who ruled that an Afghan man married to a U.S. citizen should have been told specifically why he was denied a visa under a terrorism-related provision. Judge Clifton wrote in a dissent that the couple’s desire for more information doesn’t trump “this nation’s desire to keep persons connected with terrorist activities from entering the country.”
That same year, he joined with two colleagues in a partial dissent to a Ninth Circuit panel’s decision requiring border agents to have “reasonable suspicion” to thoroughly search electronic devices entering the country, saying it would “severely hamstring the government’s ability to protect our borders.”
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Judge Michelle Friedland
The newest judge on the panel was nominated by President Barack Obama and confirmed in a 51-40 Senate vote in April 2014. Before joining the bench, Judge Friedland, 44, worked as a litigation partner in San Francisco for Munger, Tolles & Olson LLP, an elite California law firm co-founded by Berkshire Hathaway vice chairman Charlie Munger.
Born in Berkeley, Calif., she attended Stanford University and later Stanford Law School, studying at Oxford University on a Fulbright scholarship in between.
Before joining Munger, she clerked on the U.S. Circuit Court in Washington, D.C., and for Justice Sandra Day O’Connor on the U.S. Supreme Court.
While in private practice in 2009, the American Civil Liberties Union of Southern California honored Judge Friedland for her pro bono work challenging Proposition 8, a statewide ballot initiative that made same-sex marriage illegal.
Arthur Hellman, an expert on the Ninth Circuit and a law professor at the University of Pittsburgh, expects the panel not to stay the injunction in its entirety, but said it is more likely they will narrow the injunction to focus on a smaller group of individuals, like previously admitted aliens who are temporarily abroad now.
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Meanwhile, is a last minute shake up, Bloomberg reported that just hours before mounting the biggest defense of the young Trump administration, the Justice Department swapped lawyers after two of the top attorneys on the case had to recuse themselves. The U.S. said the two top lawyers representing the U.S. would not take part in Tuesday’s hearing, because of their past relationship with one of the world’s biggest law firms, Jones Day. Instead, August Flentje, a longtime Justice Department lawyer, will argue the administration’s case.
The lawyers who stepped aside worked until recently at Jones Day, which filed a brief on Monday opposing the administration’s order to bar U.S. entry to people traveling from seven majority-Muslim countries. The executive branch doesn’t have “unreviewable authority” to suspend the admission of a class of aliens, Jones Day argued in a brief on behalf of several constitutional scholars. As Bloomberg adds, at least a dozen lawyers have joined the administration from Jones Day, which with 2,500 lawyers, is one of the biggest law firms in the world.
Acting Solicitor General Noel Francisco and Acting Associate Attorney General Chad Readler joined the administration in recent weeks from Jones Day. Francisco and Readler didn’t sign on to the brief the U.S. filed ahead of Tuesday’s hearing “out of an abundance of caution, in light of a last-minute filing of an amicus brief by their former law firm,” the government said. The filing put Flentje and Justice Department lawyer Edwin Kneedler atop the list of U.S. lawyers. Flentje has worked for the Justice Department’s civil division for most of his 19-year career there. Kneedler, who has been with the solicitor general’s office since 1979 and served as deputy there for the past 24 years, has argued more than 100 cases before the U.S. Supreme Court.
It’s standard practice for lawyers who join a new administration to distance themselves from any matter that involves their law firms. What’s rare is that an administration would need its solicitor general and Justice Department to defend a signature action just weeks into its first term, when affiliations with previous employers are so fresh.
In Tuesday’s telephone hearing, the Justice Department lawyers will face off with lawyers from state attorneys general from Washington, Minnesota and Hawaii, who want the immigration ban to remain suspended as its merits are under review. The role of Francisco and Readler after Tuesday’s argument is unclear.
We hope to transmit the telephonic hearing live if it is made public.