If all you knew about the 9th Circuit Court of Appeals is what you learned through the drama of President Trump’s travel ban ruling, you may be surprised to learn that it’s not entirely made up of politically-motivated Democrats. In fact, there are at least five conservatives sitting on the 9th Circuit bench who strongly disagree with the panel’s decision to block Trump’s executive order, and they spoke out last week with harsh criticism for their colleagues.
Leading the dissent is Judge Alex Kozinski, who – joined by his Republican-appointed colleagues – wrote a blistering assessment of the February ruling. In it, he lashed out at the presiding panel for forgetting that citizens of foreign countries are not protected by the U.S. Constitution.
“This St. Bernard is being wagged by a flea on its tail,” he wrote. “My colleagues err by failing to vacate this hasty opinion. The panel’s unnecessary statements on this subject will shape litigation near and far. We’ll quest aimlessly for true intentions across a sea of insults and hyperbole. It will be (as it were) a huge, total disaster.”
Hey…was that a bit of TrumpSpeak? We like this guy already.
Kozinski’s dissent inspired the liberals on the court to defend themselves. Judge Stephen Reinhardt said the conservatives on the 9th Circuit were trying to argue the case in the public arena instead of waiting to hash it out in the courtroom.
“Judge Kozinski’s diatribe, filed today, confirms that a small group of judges, having failed in their effort to undo this court’s decision with respect to President Trump’s first Executive Order, now seek on their own, under the guise of a dissent from the denial of en blanc rehearing of an order of voluntary dismissal, to decide the constitutionality of a second Executive Order that is not before this court,” Reinhardt wrote. “That is hardly the way the judiciary functions. Peculiar indeed!”
Kozinski soon shot back, accusing the court’s liberals of cowardice.
“My colleagues’ efforts to muzzle criticism of an egregiously wrong panel opinion betrays their insecurity about the opinion’s legal analysis,” he wrote.
This is what legal scholars call a “sick burn.”
Aside from the amusement value of watching these judges roll around in the mud – which is considerable – this little spat breaks through the illusion that all the courts and all the lawyers and all the legal scholars in America agree that Trump’s travel ban is unconstitutional. The media is frantically trying to portray this as the case, and it’s just not true. This is a political war being fought in the courts, and Democrats have gotten very, very lucky thus far. That luck will run out sooner or later, because there is no realistic legal foundation for these rulings.
The only question is: How many terrorists will skate into the country in the meantime?