9th Circuit to Live Stream Trump Immigration Argument

By Jeralyn, Section Judiciary
Posted on Tue Feb 07, 2017 at 12:44:00 PM EST
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Bump and Update:

Hearing begins in two hours (3 pm PT)

From the 9th Circuit Court of Appeals:

The oral argument scheduled for Tuesday, February 7, 2017 at 3:00 p.m. PST will be available for live streaming through the court’s public website.

Here is the direct link to the live-stream.

Here is the reply brief arguing against Trump's request for an emergency stay of the lower court order. Lots of amicus briefs have been filed on both sides. Former government officials, including John Kerry, Madeline Albright and more, have filed a statement opposing Trump's request for a stay of the lower court order. They explain in detail why Trump's order endangers the United States. [More...]

There is no national security purpose for a total bar on entry for aliens from the seven named countries. Since September 11, 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order. Very few attacks on U.S. soil since September 11, 2001 have been traced to foreign nationals at all. The overwhelming majority of attacks have been committed by U.S. citizens. The Administration has identified no information or basis for believing there is now a heightened or particularized future threat from the seven named countries. Nor is there any rational basis for exempting from the ban particular religious minorities (e.g., Christians), suggesting that the real target of the ban remains one religious group (Muslims).

In short, the Administration offers no reason why it abruptly shifted to group-based bans when we have a tested individualized vetting system
developed and implemented by national security professionals across the government to guard
the homeland, which is continually re-evaluated to ensure that it is effective.

I don't think there's a snowball's chance in h*ll the 9th Circuit will order a stay. If you're interested in what Trump filed, I suggest you visit an alternative news site. I'm not linking to their filings.

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9th Circuit to Live Stream Trump Immigration Argument | 24 comments (24 topical)

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Site violator. (none / 0) (#2)
by oculus on Tue Feb 07, 2017 at 06:31:03 AM EST

What's the difference (none / 0) (#3)
by Repack Rider on Tue Feb 07, 2017 at 04:33:35 PM EST

...between the Trump White House and organized crime?

The word "organized."

IANAL, but it can't be good (none / 0) (#4)
by Towanda on Tue Feb 07, 2017 at 05:10:54 PM EST

that only a few minutes into its argument, the government is repeatedly stopped by the judge to address basic questions not addressed right away.

But the government did switch lawyers only today, as its previous lawyers worked -- only a few weeks ago, I read -- for a firm (Jones Day) that since has filed a friend-of-the-court brief for the opposing side. Ouch.

Now, make that at least two judges (none / 0) (#5)
by Towanda on Tue Feb 07, 2017 at 05:13:42 PM EST

if not all three on the panel, repeatedly stopping the government -- and they're not impressed that the government keeps excusing its apparent unreadiness (my read of the judges' reactions) as owing to "these proceedings moving so fast." The judges are not having that and point out that the government asked for fast action.


Do not read too much into the way judges (5.00 / 3) (#8)
by Peter G on Tue Feb 07, 2017 at 07:41:06 PM EST

pose questions during an oral argument. It is a technique to bring out the limits, nuances and implications of each party's position. They can play devil's advocate (or Socratic interlocutor) without showing their real cards. It's SOP for argument of an appeal. You won't know where the judges come out until they issue their ruling in writing.


: I saw a lawyer/commenter say that (none / 0) (#12)
by Towanda on Tue Feb 07, 2017 at 10:11:28 PM EST

afterward, as well. And the panel -- well, especially one member of the panel -- then was as abrupt and interruptive with the plaintiff.
I had some law classes, in my grad studies, so I am accustomed to this style of discourse . . . but it is not my preference and was one of the reasons that I opted not to do more law classes or a law degree. I prefer the more fruitful -- if just as intense -- style of a good seminar.

Thanks for link (none / 0) (#6)
by MKS on Tue Feb 07, 2017 at 05:19:58 PM EST

Listening live.

One Judge appointed by Carter, one by W, and one by Obama. Judge Friedland, the Obama appointee, is Coif from Stanford (2nd in her class) and Clerked for Stanford grad O'Connor.

Friedland (none / 0) (#7)
by linea on Tue Feb 07, 2017 at 07:40:15 PM EST

seemed pro WA state.

i agree with the discussion that "voluntary cessation" of the LPR section is inadequate. on that alone, the executive order should be quashed and sent back to be re-written.


: Are you an LPR, Linea? (none / 0) (#9)
by Peter G on Tue Feb 07, 2017 at 07:42:03 PM EST

Or naturalized?

Wandering (none / 0) (#10)
by Ga6thDem on Tue Feb 07, 2017 at 08:18:03 PM EST

around the internet it seems that most observers seem to think WA state made the most favorable argument and that it will go their way. I guess we shall see.

I only listened for about 20 minutes, on and off (5.00 / 1) (#11)
by Peter G on Tue Feb 07, 2017 at 08:28:40 PM EST

but I was frankly not very impressed by counsel for either side.


I join you (5.00 / 1) (#14)
by CaptHowdy on Wed Feb 08, 2017 at 11:11:49 AM EST

In being unimpressed. I honestly think I could have done a better job than either.


It can be tough (none / 0) (#15)
by MKS on Wed Feb 08, 2017 at 12:25:41 PM EST

to sound good under situations like these. The briefing schedule was very rough and compact.

To get it all together and sound smooth under such a tight time frame is not all that easy.

Plus, as Oculus may be alluding, the gov't lawyer may not believe in the position he was asked to defend.

When it is done well, it may look easy, but it is rarely so.


And, again, he was tossed into it (none / 0) (#16)
by Towanda on Wed Feb 08, 2017 at 12:45:42 PM EST

yesterday, only hours before the hearing, because the government lawyers who had argued the case before had a conflict of interest, when the firm for which they worked only weeks before filed an amicus brief for a client -- and a brief against the government's ban.

I also wonder if the technology added to the difficulty for both lawyers, as I see that the judges are from three different states, as far as Hawaii . . . so perhaps the judges also were not in one place but were conducting the hearing by phone. If so, conducting the call-in from five different locales was done darn well -- as anyone who has done a meeting this way, as I have, can attest. But not being able to see each other, not being able to see the signals of someone wanting to speak, could complicate the interruptions.


The govt lawyers who removed their names (none / 0) (#18)
by Peter G on Wed Feb 08, 2017 at 12:52:59 PM EST

due to an perceived "conflict of interest" (which honestly, I don't agree they had to do) had not argued the case previously. They were the top two (interim) Tr*mp appointees in the Solicitor General's office, which is the office that represents the government before the Supreme Court, indirectly supervises all other government appellate appearances, and makes the final call on what position the government will take in court on any issue.
In my opinion, btw, there was in fact enough time for a pro to prepare for argument.


I misread, then (none / 0) (#19)
by Towanda on Wed Feb 08, 2017 at 02:26:05 PM EST

that the lawyer for the government yesterday had just come on the case? But it's useful to read that ought not have prevented adequate preparation; thanks.


: I cannot tell what his expertise (none / 0) (#20)
by Peter G on Wed Feb 08, 2017 at 03:13:38 PM EST

was supposed to be, or why he was selected for this argument. His name and title are high up on the DoJ briefing, however, which implies a senior supervisory role. If it were up to me, on the government's behalf, I would have asked/directed Edwin Kneedler to do it.

I never suggested that it was easy (none / 0) (#17)
by Peter G on Wed Feb 08, 2017 at 12:46:16 PM EST

This is what I do for a living. I've delivered over 100 oral arguments in federal court appeals, including before the Supreme Court. If you want to hear what someone sounds like who's terrific at it, go to www.oyez.org and listen to any recording of an argument before the Supreme Court by Paul Clement, or Miguel Estrada, or Michael Dreeben (all of them generally on the "other" side from my leanings). Or seek out and listen on the oyez site to Pamela Karlan, or Jeffrey Fisher, or Pamela Harris, or Seth Waxman, or Neal Katyal. I am surprised the DoJ did not assign one of its top appellate lawyers to this, such as the Deputy Solicitor General who signed their brief. (I am not talking about the briefing, which was excellent all around; just the oral argument part.) Of course, that it was on the phone and not face-to-face made is harder, as did perhaps the attorneys' awareness that hundreds of thousands of people might be listening in, and that whatever they said would be front-page news immediately.


Peter, (5.00 / 1) (#23)
by MKS on Thu Feb 09, 2017 at 12:06:27 PM EST

You got me there. Don't have that many oral appellate arguments.

I did get a reversal, though, from the Ninth Circuit last year. It was an interesting panel. The Chief Judge was an Obama appointee from Tucson who used to argue Death Penalty appeals on behalf of the convicted. Smart guy.

One of the Judges was an LBJ appointee. Yep, that long ago. He and I got along great.

The other cases on the calendar included a pair of inmate appeals regarding denial of their First Amendment rights. They were arguing they were unfairly prevented from having girly magazines. No articulated standard, their lawyers said. The Obama appointed Judge at one point asked the lawyers to describe the convictions of the inmates. Child p*rn and molestation....Audible gasp from the audience. Even made the Obama guy uncomfortable. And, to make it more anomalous, at least for me, the lawyers for the inmates were very young female law students supervised by Eli Chernow.

Bottom line: imo Appellate Judges are still people subject to all the same biases, etc.


It was Erwin Chemerinski (none / 0) (#24)
by MKS on Thu Feb 09, 2017 at 08:49:17 PM EST

not Eli Chernow. Wow. Not eve close mistake.


: Oh, that makes a lot more sense (none / 0) (#25)
by Peter G on Thu Feb 09, 2017 at 09:41:05 PM EST

UC Irvine Law.

Peter have you seen (none / 0) (#21)
by ragebot on Wed Feb 08, 2017 at 05:56:56 PM EST

oral arguments presented by lawyers who thought the deck was stacked against them and were just going through the motions. Lots of talking heads on all channels are saying the 9th is the most liberal (and most reversed) court and even with the power the 1952 law gives the prez; something that was the last point DOJ made nothing DOJ did would result in a win.

Everyone seems to agree that whatever happens there will be more legal action; even if what that will be is not clear. So why would DOJ put their best lawyer/argument out when they will be going through the same thing again very quickly.

I have seen claims that Roberts will be asked to combine all the suits against the EO into one and assign it to a judge in the middle of the country for travel reasons. If that is the case I would expect that arena would be where the DOJ first team would appear. Does this seem like a realistic outcome to you.


: You raise multiple separate questions (5.00 / 1) (#22)
by Peter G on Wed Feb 08, 2017 at 07:57:29 PM EST

First, yes, I have often seen lawyers arguing before courts that are stacked against them. In fact, that is the norm for criminal defense lawyers. We argue in such courts all the time. Sadly, some of my colleagues get jaded and just "go through the motions." In fact, I witnessed just such an argument a week ago Wednesday. Good lawyers, who care about their clients and/or the issue they are advocating, do not fall into that rut.
On average, the Ninth Cir is a relatively liberal court, but the case Tuesday was argued before 3 particular judges, one quite liberal, one a moderate liberal, and one quite conservative. In any event, the outcome is not pre-ordained. I promise you every one of those judges is giving that case the most serious and intellectually honest consideration that s/he can. And I would not be shocked at a unanimous decision, nor would I be shocked at a 2-1 outcome either way.
DoJ puts the best lawyer they can onto their most important cases all the time. They do this in particular in courts where they perceive a risk of losing. They want to win. The stronger the decision at the appellate court level, the better for them if and when the case comes before the Supreme Court. And all judges view prior decisions of other judges as possible precedents for them to take seriously.
Finally, yes, it is possible where there are multiple cases around the country that risk generating conflicting orders on a matter of public importance, the Chief Justice can order the cases consolidated in a single district. When he does this, the Chief does have some power to affect the outcome by steering the case. But it would have to be one of the courts that has one of these cases. I don't think any of them are in "the middle of the country" in the sense you imply, that is, a more conservative courtroom. But this is done quite rarely. It is more common to let an issue bubble up through a variety of courts, which in the end either come together in a consensus, or else the issue goes to the Supreme Court to resolve.

Speculating as to the intiall (none / 0) (#13)
by oculus on Wed Feb 08, 2017 at 06:35:58 AM EST

reaction of the federal government's default career lawyer when informed he would argue the case.
