Feud in the Ninth CircuitEditorial of The New York Sun | March 18, 2017
Whatever else one can say about President Trump’s so-called travel ban, it has ignited a fabulous feud among the riders of the 9th United States Appeals Circuit. One has called the whole case a “folly” and likened it not just to a dog being wagged by its tail but also to a St. Bernard “being wagged by a flea on its tail.” It’s hard not to imagine that, from the high bench, the sages of the Supreme Court are enjoying the spectacle.
The business about the St. Bernard and the flea is from of one the clearest-thinking judges on the whole appeals bench, Alex Kozinski. He issued a dissent from the refusal of the 9th circuit to give a full, en banc review of a district court’s decision to block President Trump’s travel ban. He warns of a chilling effect of courts holding politicians to account for comments made on the stump.
Politico’s Josh Gerstein (our former coast-based national correspondent) has published a terrific summary of the feud, in which Judge Kozinski is but one of five judges circuit-riders who want the full bench to hear this case. A filing Friday, comprising ripostes from both sides, makes delicious reading. In it, one joey, Stephen Reinhardt, characterizes Judge Kozinski’s opinion as a “diatribe” and insists no issue is left for the appeals court.
Judge Kozinski fixes on two features of the current case. One is the question of due process. The reasoning of the 9th Circuit majority, Judge Kozinski points out, “rests solely on Due Process.” He goes on to point out, however, that the “vast majority of foreigners covered by the executive order” — being foreigners who have never set foot at America — “have no Due Process rights.”
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