There is growing pushback on Capitol Hill and even from the bench against the ruling by the 9th Circuit Court that prevented the president’s travel ban executive orders from being implemented.
Some judges believe that the legal reasoning in the decision is weak and that the appeals court appeared to allow their personal feelings to affect their ruling.
“As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy,” Judge Jay Bybee, of the 9th U.S. Circuit Court of Appeals, wrote in a dissent Wednesday. He said his colleagues erred in not agreeing to rehear Mr. Trump‘s defense of his original executive order. …
Late Wednesday, a federal judge in Hawaii said it wasn’t good enough and that Mr. Trump‘s harsh rhetoric about Muslims during the presidential campaign has poisoned his efforts. U.S. District Judge Derrick Watson issued a nationwide temporary restraining order.
“This is judicial activism at its worst,” said Rep. Jeff Duncan, South Carolina Republican.
Democrats countered that they were happy to see courts brave Mr. Trump and step in to stop him.
“I’m grateful for the judiciary system,” said Rep. Nanette Diaz Barragan, California Democrat. “It’s a checks-and-balance system that we have in this country that is meant to provide the oversight when you have a president who is doing whatever he wants to regardless of the law.”
Mr. Trump railed against the decision, calling it “unprecedented judicial overreach” and wondering whether it was made for political reasons.
Conservative legal scholars said whatever the political motivations, the judges who have ruled against Mr. Trump botched the law.
That assessment included a decision handed down early Thursday by a federal judge in Maryland, even though it only enjoined enforcement of the portion of the order restricting travel of foreign nationals from six countries.
“In none of those decisions did the judges actually discuss the legality or constitutionality of the federal immigration statute at issue,” said Hans von Spakovsky, senior legal fellow at The Heritage Foundation. “This is an indication that the judges were looking at this as a policy question: Did they like or not like the policy?”
Both the president and Republicans in Congress are looking into splitting the 9th circuit – the nation’s largest. It encompasses nine states and one fifth of the U.S. population. It is also, according to legal scholars, the most liberal circuit in the nation.
But that won’t solve the president’s immediate problem. Conservatives can fume all they want, but it seems clear now that only the Supreme Court can change the outcome.
That is, a Supreme Court that includes Trump nominee Neil Gorsuch.
The Gorsuch nomination is being held up by other, more pressing congressional business like Obamacare repeal and the budget. But perhaps the nomination should be fast-tracked by the president and the Senate. Gorsuch is a shoe-in for the court, with several Democrats saying they are likely to vote for him. Of course, senators on the Judiciary Committee are going to want their TV time during confirmation hearings. But once the committee recommends him, Majority Leader McConnell should immediately bring the nomination to the floor.
This process will take months, not weeks. Therein lies Trump’s dilemma. Does he take a chance that he can peel off at least one justice to win the case? A 4-4 tie does him no good; it would simply allow the lower court ruling against him to stand. So unless the president has a reasonable expectation of support from at least one judge from the other side, he is likely to bide his time and continue the fight in the appeals courts.
The 9th Circuit judges refused to rule on the constitutionality of the travel ban and instead offered up a political opinion on a policy matter.
There is nothing more destructive of judicial review than judges playing politics with the law.