Appellate Judge’s Swat at Trump & Travel Ban

A minority of judges on the 9th U.S. Circuit Court of Appeals wanted to void the original three-judge decision upholding the Seattle stay of Trump’s first travel ban, but they lost a vote by the 25-judge court.

The vote has no practical effect on the current travel ban stay issued in Hawaii Wednesday, but it does provide a hint that a majority of the court may be sympathetic to Hawaii’s order. It also gave Judge Stephen Reinhardt an opportunity to take a swipe at Trump. Here’s how that works.

Judge Stephen Reinhardt, center.

The appeals court dismissed the original Seattle travel ban case after upholding the stay in February. The government said it would revise the travel ban, making the Seattle case moot, thus the dismissal.  But the appeals court order upholding the stay remained in place as a precedent-setting decision.  That didn’t sit well with some members of the court.

Behind closed doors, the judges called for a vote on whether to vacate or overturn the stay order. This required a majority of the 25-judges to approve and send the issue to an 11-judge review panel, known as an en banc review.

On Wednesday, the appeals court issued an order saying that vote failed and the three-judge opinion would remain in place.

In a separate dissent, five judges said they believed the order should be vacated.  They included Judges Jay Bybee, Alex Kozinski, Connie Callahan, Carlos Bea and Sandra Ikuta.

In a concurring opinion, Judge Stephen Reinhardt said he thought the court should leave the order alone. Then he went farther, taking a not so subtle swipe at the Trump Administration.  He wrote, “I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.”


Case: Washington v. Trump, No. 17-35105


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