A “hot bench” put the federal government’s feet to the fire, several local attorneys said after listening to the 9th Circuit hearing on President Trump’s travel ban. But they noted Washington’s lawyer faced tough questions too.
It was a “hot bench.” That much was clear to John McKay, a former U.S. attorney for Western Washington, now in private practice.
The three 9th Circuit Court of Appeals judges who heard the Trump administration’s request to overturn an emergency stay of the president’s travel ban asked so many skeptical questions of the administration’s attorney, August Flentje, that “he was barely able to finish his argument,” McKay said.
Several local attorneys felt the same: The judges’ rapid-fire questions tended to land hardest on the federal government.
It was one reason why Matt Adams, legal director for Northwest Immigrant Rights Project (NWIRP), said after the hearing that he was optimistic that the 9th Circuit would leave Seattle federal Judge James Robart’s stay in place. Like Washington’s attorney general, who brought the case leading to a stay, NWIRP is challenging Trump’s order in court.
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Adams said the judges didn’t seem to buy Flentje’s argument that the court should not scrutinize the motivation of the president’s order. Washington state, like NWIRP, contends that the order is motivated by animus against Muslims, despite the Trump administration’s position that national security is its only concern.
Kathryn Watts, a University of Washington law professor specializing in constitutional law and presidential power, said the judges seemed interested in the state’s argument that the executive order violated the “establishment clause” of the First Amendment, which prohibits the government from favoring one religion over another.
“If you don’t have at least two judges leaving the stay in place, that would surprise me,” she said.
But while Judges William Canby Jr. and Michelle Friedland seemed to lean that way, she and others said, Judge Richard Clifton had some tough questions for Washington Solicitor General Noah Purcell. How could Purcell say that Trump’s order was anti-Muslim while the vast majority of the world’s Muslims were not affected, Clifton wanted to know.
“I think that was a difficult question to answer,” McKay said. “In the end, I think Noah Purcell got it right.” Purcell argued that it didn’t matter whether all Muslims were affected as long as the order’s motivation derived from religious bias.
Still, McKay thought the three judges’ questioning overall revealed an inclination to leave the stay in place and send the case back to Robart — the man Trump called a “so-called judge.”
Yet, all said it’s hard to accurately predict what judges will do based on their questioning.
“This is not your ordinary case,” Watts added. “The norms go out the window.”