A Remarkable Dissent

Hon. Judge Alex Kozinski

On January 27 President Trump’s Justice Department issued a travel ban from seven Muslim countries. On February 3 a federal district judge in Seattle issued a temporary restraining order (TRO) against the travel ban. The Justice Department appealed to the 9th Circuit. On February 9, a three judge panel of the 9th Circuit Court of Appeals denied the Justice Department’s request to stay the TRO.

The Justice Department requested a rehearing by the full Court of Appeals (there are 29 judges on the 9th Circuit Court of Appeals), but on February 16 the 9th Circuit cancelled the en-banc review because President Trump announced that the Justice Department was going to issue a revised travel ban. On March 8, the Justice Department moved to dismiss its appeal, and the 9th Circuit Court dismissed it the same day.

What’s remarkable is that Judge Kozinski and four other 9th Circuit judges dissented, in writing, to that dismissal. After all, the Justice Department itself had asked to withdraw its own appeal, in favor of litigating a revised travel ban, with a new administrative order, new cases, and new TROs by new judges in Hawaii and Virginia.

Still, the issues are the same. So Kozinski et al. dissented on the grounds that, irrespective of whether the Justice Department wanted to move on, the three judge 9th Circuit panel was so godawful wrong that the full Circuit should have finished deciding the case. Wrote Kozinski,

“This St. Bernard is being wagged by a flea on its tail. 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.”

Kozinski is right: now, almost undoubtedly, the 9th Circuit will again be, as they so often are, reversed by the Supreme Court, when they could have fixed it in house, so to speak.

Except . . . senile turncoat Kennedy may screw us over again. We’ll see.

& beyond all that, please do:

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