RUTHFULLY YOURS

Rich Lowry has a great column on our “overly sanctified” view of the judiciary. It comes amid the hysteria over President Trump’s rather mild rebuke of federal judges — particularly, James Robart, the district judge who imperiously issued a temporary restraining order (TRO) against Trump’s temporary travel ban excluding refugees and other aliens from seven countries. To a lesser extent, Trump has also groused about the three-judge panel from the Ninth Circuit Court of Appeals that on Thursday refused to overrule Robart’s TRO. (Note: This column was written before the Ninth Circuit’s decision was announced.)

Over the weekend, Trump notoriously tweeted that Robart is a “so-called judge.” On Wednesday, he conveyed exasperation over the previous evening’s Ninth Circuit oral argument, which the president saw as straying far afield of the clear statute that he argues — persuasively — authorizes the ban he has ordered.

I thought Trump’s comment about Robart was childish (and said so on Twitter). It was not the end of the world. After all, Robart’s order is appalling. It neither explains key conclusions nor addresses the clear statutory authority on which Trump relied. But Trump is the president of the United States now, not a celebrity commentator, and his dig was aimed at the judge personally, not at the poor quality of Robart’s work.

That said, can we dial back the hyperventilation over how Trump has purportedly called into question Robart’s legitimacy as a judge, or the legitimacy of the judiciary in general? “So-called” is something of a verbal tic with Trump when he is agitated — kind of like me muttering “jackass” (which I try to do under my breath rather than on Twitter). I wouldn’t read much into it.

I wouldn’t read much into it . . . but apparently Senator Richard Blumenthal (D., Conn.) would. With Judge Neil Gorsuch, Trump’s Supreme Court nominee, making the Senate rounds, Blumenthal took the opportunity to chat him up on the president’s remarks. There is now dispute between the Blumenthal and Gorsuch camps over whether the judge actually said he found Trump’s meanderings “demoralizing” and “disheartening.” Natch, it was enough to have the president burning up his keyboard with tweets about the senator’s misrepresentations — years back — about his military service during the Vietnam War. Sigh . . .

In any event, my objection to Trump’s tweet-burst had nothing to do with my tender sensibilities. It was tactical. As someone who used to do this sort of work for a living, I know taking a gratuitous swipe at a judge is never a smart move, especially when (a) it’s going to rub other judges the wrong way, and (b) the judge you’ve scorned is going to continue presiding over your case.

The Ninth Circuit is a tough enough slog for law enforcement on a good day; there was no need to give those guys reason to be more hostile. Plus, no matter what the Ninth Circuit decided to do there was a high likelihood the case would be sent back to Judge Robart for further proceedings. And as any litigator will tell you, a lot of things a judge decides in a case are not black-and-white. They are shades of gray as to which the judge has mounds of discretion. A judge holding a grudge can hurt you a million ways without triggering an actionable bias claim.

It’s often said that bad facts make bad law. In the case of the Ninth Circuit’s just-issued ruling continuing the nationwide injunction against Donald Trump’s executive order pausing immigration from seven jihadist or jihad-torn countries, it’s necessary to amend that saying. Bad facts combined with superheated politics can make terrible law.

Before addressing the court’s ruling, let’s refer back to some of the bad facts that made it more likely. Critically, the Trump administration issued a significant executive order (and then defended it in court) without laying any real factual foundation for its finding. Next, the administration enforced the order in a haphazard and unnecessarily cruel manner, initially including even green-card holders in its scope. By slamming the door (at least temporarily) in their faces, it created a crisis atmosphere that not only ramped up the political stakes, it told the court that the administration didn’t exactly know how to interpret its own order. This invites judicial meddling.

What does the opinion actually say? It made four critical rulings and one dangerous implication.

First, the court ruled that the states of Washington and Minnesota had standing to assert legal claims against the Trump administration — mainly on behalf of their state universities and the scholars and students impacted by the order. Here’s the court:

We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.

Applied more generally, this ruling would give state attorneys general extraordinarily broad powers to act essentially as lawyers for actual or potential immigrants — merely by pointing to the alleged costs incurred by key state institutions if they are even temporarily deprived of the immigrant’s presence. While the standing ruling might be more credible if applied to individual immigrants whose exclusion from the country causes specific and identifiable harm to the state, here the court used the possibility of specific harm to confer general standing on states to act on behalf of immigrants as a class. This is extraordinary.

Second, the court held that it had the constitutional authority to review and determine the legality of the order. This is the least problematic aspect of the court’s ruling. I don’t agree with the administration’s assertion that it has “unreviewable authority to suspend the admission of any class of aliens.” The order should receive judicial deference, but it is still subject to judicial review. And that’s what the court said:

In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.

President Trump’s immigration executive order has been a fiasco from the start, but the damage is spreading as a federal appeals court on Thursday declined to lift a legal blockade. Now the White House order has become an opening for judges to restrict the power of the political branches to conduct foreign policy.

The Ninth Circuit Court of Appeals upheld a Seattle judge’s nationwide temporary restraining order against the refugee pause and travel suspension from seven countries with heightened terrorism risks. The court ruled that the government wasn’t likely to prevail on the merits in a suit brought by Washington state and Minnesota.

The liberals and never-Trump conservatives who’ve spent months predicting the arrival of American fascism are suddenly breast-beating about U.S. checks and balances. Apparently they lack confidence in American institutions unless they’re running them. But while we opposed Mr. Trump’s order on policy grounds, there is reason to worry now about judicial overreach.

***

Remarkably, the three-judge panel’s 29-page decision doesn’t discuss the Supreme Court’s Youngstown doctrine, which teaches that the President’s actions are most legitimate under the Constitution when the executive works in concert with Congress. The plain text of the 1952 Immigration and Nationality Act gives the executive exclusive authority to suspend “the entry of any class of alien” that “would be detrimental to the interests of the United States.”

The Ninth Circuit also made a hash of the important limit on the judicial power called standing. The courts are only supposed to hear cases with specific and concrete injuries that they can resolve. Washington and Minnesota asserted vague and speculative harms to their public university systems, like being deprived of hypothetical talented immigrant students in the future. That’s not good enough under traditional Supreme Court standing doctrine.

Instead, the Ninth Circuit panel held that Mr. Trump’s order violated due process, such as ample notice of the new policy and a hearing for those affected. That might be true for lawful permanent residents travelling abroad, who were first included in the order and then excised under a memo from White House Counsel Don McGahn. (Then they, and not the states, should sue.)

But the Ninth Circuit’s due-process claims even apply to some categories of foreign nationals overseas who have yet to enter the country. The opinion repeatedly cites the Boumediene v. Bush decision of 2008, when the Supreme Court held that the enemy combatants at Guantanamo Bay have a right to challenge their detention by the government. CONTINUE AT SITE

WASHINGTON—The U.S. Senate confirmed House Budget Chairman Tom Price (R., Ga.), President Donald Trump’s nominee to lead the Department of Health and Human Services, in a 52-47 party-line vote early Friday morning, placing him atop a sprawling agency tasked with dismantling the Affordable Care Act.

Mr. Price’s nomination served as the first major proxy fight in Congress over the fate of former President Barack Obama’s signature health law, which Republicans have vowed to repeal and replace. The 62-year-old former orthopedic surgeon has earned a reputation in Congress as a leader in pushing his party’s health-policy plans—especially an alternative to the ACA.

His confirmation boosts Republican efforts to rewrite the law sometimes called “Obamacare,” as well as overhaul Medicaid, a push that has been bogged down in recent weeks as the GOP struggles to unify behind a health law of its own. Democrats, beyond hoping to salvage the ACA, have criticized Mr. Price as an industry insider who they say will favor the medical industry at the expense of patients.
Mr. Price is also expected to follow through on an executive order, issued by Mr. Trump on the first day of his administration, directing federal agencies to pare back regulatory elements of the ACA in ways that don’t require congressional action. There is little evidence of action on that front so far, but Mr. Price’s installation could change that. One rule he could overturn, for example, is the Obama administration’s mandate that health plans include contraceptive coverage at no cost to the patient, a protection that isn’t explicitly written into the law. As a congressman, Mr. Price voted regularly against federal funding for abortion and expressed skepticism about federal contraception requirements.

The Senate vote on Mr. Price’s confirmation came just after 2 a.m., after Democrats used the full 30 hours of debate allotted to them to delay the proceedings.
Mr. Price’s confirmation process, like that of other high-profile Trump nominees, has been contentious and at times angry. Prominent Democrats, including Sens. Elizabeth Warren of Massachusetts and Al Franken of Minnesota, grilled Mr. Price about his views on central ACA provisions—including an expansion of Medicaid, which analysts estimate has provided 12 million Americans coverage and which Mr. Price, who criticizes the Medicaid program as inefficient, has voted to repeal. CONTINUE AT SITE

HOW CAN THIS CAD SIT IN JUDGEMENT ON ANYONE? EVER?
http://www.bernsteincrisismanagement.com/dear-richard-blumenthal-youre-a-liar/

LIAR! There are four ways to lie in the court of public opinion:

By commission — e.g., saying you served in Vietnam when you haven’t.
By omission — e.g., by failing to note that you spent most of the Vietnam years assiduously trying to AVOID military service.
By understatement — e.g., like saying “on a few occasions I have misspoken about my service.”
By exaggeration — e.g., “When we returned, we saw nothing like this’’ (when speaking about Vietnam veterans as if you were one of them).

A Democratic senator who lied about his military service for decades is now calling on his colleagues to thoroughly vet the background of President Donald Trump’s Supreme Court nominee.

Sen. Richard Blumenthal (D., Conn.), a member of the Senate committee that handles legal confirmation hearings, said that Appellate Court Judge Neil Gorsuch will face tough questions about his background. He said the Colorado-based judge will have “every aspect of his background” investigated by Democratic committee members before his nomination to the nation’s highest court moves forward.

“It is important that every aspect of his background be critically and closely scrutinized,” Blumenthal told the Wall Street Journal.

Blumenthal singled out a report in the Journal that questioned whether Gorsuch participated in pro-bono legal programs while attending Harvard Law School. The newspaper spoke to six of his contemporaries who did not recall Gorsuch providing free legal services to inmates or the poor as a student. The report failed to note that five of the six sources had donated thousands of dollars to liberal candidates and causes.

Blumenthal said he expected the report to play a role in confirmation hearings.

“This issue goes to credibility and qualifications,” Blumenthal said.

Blumenthal’s own credibility has been called into question since he entered public life. When Blumenthal first ran for the Senate in 2010, the New York Times revealed that he had lied for years about fighting in the Vietnam War. Blumenthal repeatedly touted his supposed combat experience in speeches to veterans groups and civic organizations, saying he had “served in Vietnam.”

However, a review of his military records revealed that he procured five deferments from the military before joining the Marine Reserve. During the war he traveled as far west as Washington, where he helped the Toys for Tots program, but never saw actual combat.

“What is striking about Mr. Blumenthal’s record is the contrast between the many steps he took that allowed him to avoid Vietnam, and the misleading way he often speaks about that period of his life now, especially when he is speaking at veterans’ ceremonies or other patriotic events,” the Times reported.

Blumenthal claimed to have misspoken, though that did not explain his failure to correct the record when numerous media reports and profiles described him as a Vietnam veteran.

Blumenthal’s office did not return requests for comment.

If confirmed, Judge Gorsuch would fill the vacancy left by Justice Antonin Scalia’s sudden death in February 2016. Already a majority of Democrats have vowed to filibuster the nominee in retribution for Republicans’ refusal to hold hearings for D.C. Appellate Judge Merrick Garland, Obama’s nominee to replace Scalia.

Blumenthal was one of six senators scheduled to meet Gorsuch on Wednesday and is one of just nine Democrats to intimate that he supported giving Gorsuch an up or down vote. Republicans hold a 52-48 majority in the Senate. Nine Democratic votes would give Republicans enough support to hold a vote without changing Senate rules, which require a 60-vote majority to break a filibuster.

Over 60 percent of California voters went for Hillary Clinton — a margin of more than 4 million votes over Donald Trump.

Since Clinton’s defeat, the state seems to have become unhinged over Trump’s unexpected election.

“Calexit” supporters brag that they will have enough signatures to qualify for a ballot measure calling for California’s secession from the United States.

Some California officials have talked of the state not remitting its legally obligated tax dollars to the federal government. They talk of expanding its sanctuary cities into an entire sanctuary state that would nullify federal immigration law.

Californians also now talk about the value of the old Confederate idea of “states’ rights.” They whine that their state gives far too much revenue to Washington and gets too little back.

Residents boast about how their cool culture has little in common with the rest of the U.S. Some Californians claim the state could easily go it alone, divorced from the United States.

Sound a bit familiar?

In December 1860, South Carolina seceded from the Union in furor over the election of Abraham Lincoln.

Lincoln did not receive 50 percent of the popular vote. He espoused values the state insisted did not reflect its own.

In eerie irony, liberal California is now mirror-imaging the arguments of reactionary South Carolina and other Southern states that vowed to go it alone in 1860 and 1861.

Like California, South Carolina insisted it could nullify federal laws within its state borders.

Like California, South Carolina promised to withhold federal revenues.

Like California, South Carolina and other Confederate states bragged that their unique economies did not need the Union.

They boasted that “King Cotton” had created the wealthiest class in the United States. Silicon Valley now often assumes that Google, Facebook, Apple, and others are near-trillion-dollar companies that are a world unto their own.

In early January, Vincent Tolliver, a candidate for the chairmanship of the Democratic National Committee, wrote in an e-mail to The Hill that fellow candidate Keith Ellison, the first known Muslim to sit in Congress, should not be party chairman because of Islamic attitudes toward gays. “Islamic law is clear on the subject,” wrote Tolliver, “and being gay is a direct violation of it. In some Muslim countries, being gay is a crime punishable by death.” Tolliver added that he was “shocked” that the Human Rights Campaign, a gay-rights group with close ties to the Democratic Party, had been “silent on the issue.” (In fact, the HRC has enthusiastically endorsed Ellison, notwithstanding his past links to Louis Farrakhan and his current involvement with CAIR, the Muslim American Society, and the Islamic Society of North America.)

The DNC was quick to act on Tolliver’s complaint: it promptly removed him from consideration for the party chairmanship. “The Democratic Party welcomes all Americans from all backgrounds,” declared interim chairwoman Donna Brazile (famous for passing debate questions to Hillary and then lying about it). “What we do not welcome is people discriminating against others based on who they are or how they worship.” Brazile, an open lesbian, called Tolliver’s remarks about Islam “disgusting” and stated that because of those comments, he was “no longer a candidate for DNC Chair.”

Brazile’s statement was a timely reminder that on the progressive left, where facts and ethical principles take a back seat to identity politics, Muslims are now the top-ranking victim group, and gays – gay men, anyway – are at the very bottom, below blacks, Latinos, Native Americans, women, transsexuals, disabled Americans, weight-challenged Americans, etc. Never mind that what Tolliver said about Islamic attitudes toward gays is entirely correct: on the progressive left, acknowledging such uncomfortable truths is verboten.

Why are gays no longer the darlings of the left? Part of the reason is the mainstreaming of the academic concept known as intersection: if you’re a gay white male, yes, you’re gay, all right, but you’re also the two worst things you can be in the eyes of the left: white and male. Which means that on balance, according to the leftist calculus, you’re more privileged than you are oppressed. That’s especially true, of course, now that same-sex marriage is the law of the land. Indeed, although the left celebrated the Supreme Court ruling in Obergefell v. Hodges well into the night, when the sun rose the next day gay people suddenly looked very unsexy. Is it mere coincidence that at almost the exact same moment when the gay-rights movement won its big victory, the transsexual movement appeared as if from out of nowhere to take its place on the progressive agenda? Suddenly we’re being asked to memorize dozens of new pronouns to cover gender categories nobody had ever heard of a year or two ago. Only yesterday, gay marriage felt exotic; now being gay – just plain gay – feels downright square.

Some gays still think the left has their back. When Obama left office, gays flooded You Tube and Twitter with messages thanking him for gay marriage – which he’d had absolutely nothing to do with (and which he, like Hillary, had in fact opposed for most of his administration). On November 8, gay Americans, buying into the entirely baseless premise that Hillary gives a damn about them, voted overwhelmingly for her – a woman whose family foundation has banked millions from Oman, Yemen, and the United Arab Emirates, all of which imprison gays, and Saudi Arabia, which executes them. Meanwhile the same gay voters jeered at Trump, who in 2005 publicly congratulated Elton John and David Furnish on their marriage; who, according to one local, “changed…Palm Beach” by admitting gay couples as members of Mar-a-Lago; who actually waved a rainbow flag at one of his campaign rallies; who’s been praised eloquently by one of the smartest gays in the country, billionaire entrepreneur Peter Thiel; who reacted with an un-Obama-like rage and candor to the jihadist massacre at the Pulse nightclub in Orlando; and who, upon accepting the Republican nomination, promised to “do everything in my power” to protect gay Americans “from the violence and oppression of a hateful foreign ideology.”