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Tuesday, February 07, 2017

WHY 45 SHOULD WIN IN THE 9TH CIRCUIT

UPDATE: It's going to be one "Luck  y" judge who will be appointed to the 3rd DCA shortly. 
We shook our magic 8 ball and asked who would the Gov appoint? 
"All signs lead to Luck."

The Judge has impeccable credentials. Clerked for the "right" judge at the 11th Cir. A fav of the Federalist Society (Motto: "Committed since 1985 to overruling Marbury v. Madison and ending liberal judicial review.") Judge Luck has done a fine job on the criminal bench and we are lucky to have him working in our community. 

Judges Miller and Lindsey and ASA Lobree have all been told they are on the short list for the next vacancy and have been urged to re-apply. 

THE 9TH SHOULD REVERSE OR LIMIT THE STAY

Longtime and careful readers of this blog well know that other than the sheer entertainment value of the current presidency, there is little we like or respect coming from 45's White House in terms of policy. 

But the 9th Circuit Court of Appeals should reverse the District Court judge and lift the stay on the order. Here is why:

It is bad precedent for a court to meddle in a president's national security order.

Trump's travel ban is racist. Much like the decision in Korematsu, it is un-american, representing the worst of our country's xenophobic and nativist tendencies. 
But only the president gets the Presidential Daily Briefing. Only the president gets ALL the intelligence from the various US intelligence agencies. And therefore, as much as we do not like, trust, or respect this president, there should not be precedent of an appellate court substituting its judgment for that of a president's judgment in the area of national security. Period. 

Assume an evil race of aliens landed and took over Australia. Call them the ....TomBradys. And assume the evil aliens worship some black-hearted deity...call him Belichick. Assume all who worship Belichick have one goal in their religion- the destruction of the United States. It would be constitutional and the absolute duty of the President to ban all TomBradys from entering this country based on their race and religion in order to protect this country. Period. Some orders based on race and religion are constitutional, as difficult as that is to stomach.  

The current travel ban is wrong. It is misplaced. It does not make our country safer and probably endangers our country even more. All of that being said, the principle of the President having near unfettered authority at the boarder and in areas of national security must- for the power of presidency- be preserved. And sadly, in this case that means reversing the well intentioned order of the district court and lifting the stay. 

See You In Court in Occupied America. Fight the power. 


12 comments:

Anonymous said...

Of course Katherine Fernandez Rundle's office won't charge the family member responsible for the death of the 1 year old left in the car in Aventura. The person responsible is not black. If this happened in Miami Gardens they would ask for prison and assign the case to an unreasonable prosecutor.

Anonymous said...

I have a case in front of Judge Hanzman. He read everything before we got to his courtroom, was so polite and respectful to me and my client and knew the law. Outstanding jurist. It's like being in Federal Court.

Claude Erskine-Browne said...

The 9th Circuit will cancel the ban because the State of Washington has no standing.

CAPTAIN JUSTICE said...


9:32 AM. It wasn't Aventura; it was Pinecrest. And you are so right about your premise. It's a horrible thought to charge anybody with that crime. No punishment can be worse that a lifetime of feeling responsible for the death of your baby. But, at least be consistent. We can't ask for anything more than that.

Cap

Anonymous said...

Rumpole - your analysis is stunningly superficial. Maybe not stunning after all.

Anonymous said...

Re: "It is bad precedent for a court to meddle in a president's national security order."

The ruling can be limited to the facts here: blatant, direct evidence of discriminatory intent by--unlike with statutes--the only person responsible signing the EO.

It is far worse precedent for a court not to meddle in a president's discriminatory animus so sloppily clothed in an executive order of such magnitude and with known and unknown consequences.

Anonymous said...

Yes. Terrible analysis. Is the ghost of Nixon drifting in with the implication of nebulous national security concerns?

Anonymous said...

Rumpole,
Say what you say but, I really didn't like working with Judge Luck. He assumes the State is always right and cops are all honest.

Anonymous said...

I agree with 1:56. If this order stands, we have unleashed limitless executive power. More than Nixon even sought.

Anonymous said...

Luck was great when I was before him in civil court. Probably the best prepared state court judge I've seen in action. The guy actually appears to have done independent legal research and then questioned lawyers on the case law in open court.

Huey Freeman said...

You were correct that "some" orders are constitutional. This one just happens to be in the group of the "some that are not."

Anonymous said...

"Anonymous said...
Rumpole,
Say what you say but, I really didn't like working with Judge Luck. He assumes the State is always right and cops are all honest."
Maybe it's been while since you've seen him in action. Go sit in through one of his calendars before he leaves.