A decision on President Trump’s ban on some Middle East travelers could come as soon as today after a panel of appeals court judges grilled attorneys on both sides for more than an hour last night.
In a judicial interrogation via conference call — audio-streamed on the Internet and broadcast live on cable news channels — three judges on the 9th Circuit Court of Appeals interrupted and berated their way through the attorneys’ arguments in the ongoing legal case in the U.S. District Court in Washington state, where a federal judge stayed Trump’s executive order last week.
Appellate Judge Richard Clifton, appointed by President George W. Bush, disputed arguments by the Washington state attorney general’s office that Trump’s move to stop travel of non-citizens from seven Muslim-majority countries amounts to religious discrimination.
“I’m not entirely persuaded by the argument, if only because the seven countries encompass only, I think, a relatively small percentage of Muslims,” Clifton said. “My quick penciling suggests less than 15 percent.”
“I have not done that math, your honor,” admitted Noah Purcell of the Washington state AG’s office.
But the judges also hammered Justice Department attorney August Flentje, who argued Trump as president has the legal authority to impose the travel ban. He was interrupted frequently by Judge Michelle Friedland, an Obama appointee, who questioned the link between the nations named in the order and jihadism.
“Has the government pointed to any evidence connecting these countries to terrorism?” Friedland asked.
Flentje contended the seven countries — Iran, Iraq, Syria, Libya, Somalia, Yemen and Sudan — previously had been identified by the Obama administration as sources of terrorism.
The panel has two Democratic appointees and one Republican.
Regardless of how the court rules, the matter is likely to end up at the Supreme Court, where a 4-4 ideological deadlock now exists.
The two sides were arguing over the merits of the ruling from U.S. District Court Judge James Robart of Seattle Friday that temporarily halted Trump’s travel ban. Trump has blasted Robart on Twitter for stopping the travel ban in the first place, suggesting “if something happens blame him and the court system.”
Meanwhile yesterday, the Senate confirmed Betsy DeVos, Trump’s pick to serve as secretary of education, despite strong opposition and protests from Democrats.
Vice President Mike Pence cast the first tie-breaking vote in history for a Cabinet nominee after Republican Sens. Susan Collins of Maine and Lisa Murkowski of Alaska voted against DeVos.
Republicans also needed the vote of Sen. Jeff Sessions of Alabama, Trump’s nominee for attorney general, who has not yet stepped down from his seat.
A Senate committee also advanced Veterans’ Affairs nominee David Shulkin to the full Senate for a vote.
Many others, including secretaries for health and human services, treasury and commerce, also still have to be approved — an ongoing sense of irritation for Trump, who tweeted his annoyance last night, saying, “Obstruction by Democrats!”
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