Monday, November 26, 2018

Trump bashes 9th Circuit for reversal rate...

...but you know which Circuit is reversed more often?

That's right, the 11th Circuit. (82% for the 11th vs. 80% for the 9th over the past 5 Terms).

It's all silly, of course. The reversal rate is pretty consistent across the circuits as the Supreme Court generally takes cases to reverse, not to affirm.

And the 9th Circuit is by far the largest Circuit with the most cases, so on a pure number-of-cases basis, it's going to lead the pack.

Justice Roberts joined the fray with this retort about an independent judiciary.

The Washington Post then roasted Trump explaining that judges on both sides of the aisle have been ruling against him, again and again:

[Roberts] could have noted that the number of rulings against his administration’s actions now stands somewhere in the range of about 40 to 50, according to a rough estimate by The Washington Post. Norman Siegel, writing at in January, counted 37 “major” losses, and that was in January, before numerous other rulings that thwarted Trump administration decisions.

And he could have observed that all of this is a bit of a surprise. All presidents lose cases. But a losing streak of this magnitude for a president is a new phenomenon.

Despite the endless decades of rhetoric about “judicial activism,” judges at the district court level are generally a timid lot when it comes to confronting presidents. Historically, they are inclined to do what former federal judge Nancy Gertner calls “duck, avoid and evade.”

“Now,” she wrote in the April issue of NYU Law Review, “I am not so certain. . . . Perhaps ‘judging in a time of Trump’ ” is different, she wrote. “It is one thing to ‘duck, avoid and evade’ when you believe that official actors are acting more or less within constitutional bounds. It is another to do so when you are concerned about real abuse of power.”

It was U.S. District Court Judge Dana M. Sabraw, for example, a California jurist appointed by President George W. Bush, who ripped the administration repeatedly for its family separation debacle.

And how could Trump forget that it was his own appointee, Timothy J. Kelly of the U.S. District Court for the District of Columbia, who slapped down the effort to ban CNN’s Jim Acosta from the White House.

One of the toughest dressings-down came from a decision blocking Trump’s “sanctuary cities” crackdown written by Judge Ilana Rovner, appointed by President George H.W. Bush to the U.S. Court of Appeals for the 7th Circuit, based in Chicago. In a decision joined by a Gerald Ford appointee and a Reagan appointee upholding a lower-court ruling by a Reagan appointee, she lit into the Trump administration for assuming powers to withhold money not granted to it by Congress to punish states and cities that didn’t go along with efforts to round up those in the country illegally.

Her message to Trump and then-Attorney General Jeff Sessions, translated, was basically, who do you think you are?
Our role in this case is not to assess the optimal immigration policies for our country. . . . The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescense of elected legislators, the check against tyranny is forsaken.


Anonymous said...

The numbers are sill, you're right. What we need is a deeper look into the issues (and the opinion writers) that are getting reversed. Id there a list somewhere of all the 11th cases that have been reversed?

Anonymous said...

11th Circuit is out of touch and gets reversed more than any other circuit.

Anonymous said...

Just because the 11th gets reversed more than most circuits, doesn't mean they're "out of touch." Maybe it's the Supreme Court that's out of touch?

northierthanthou said...

9th-circuit bashing is a bit like Hillary-bashing; it's a staple of right wing narratives.