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A Sidelight to the Fourth Circuit's Travel Ban Case

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Kent noted today's travel ban case, decided in an opinion written by Chief Judge Roger Gregory of the Fourth Circuit.

There is an interesting story about how Judge Gregory got his job.  It contains a warning for Republicans.
In the late 1990's, Judge Gregory was a Richmond law partner of Gov. Doug Wilder, a Democrat.  He was the first black Governor of Virginia, and the first elected black governor in the country since Reconstruction.

In December of 2000, President Clinton nominated Gregory to the Fourth Circuit.  The Senate Judiciary Committee, then chaired by Republican Orrin Hatch, declined to vote on the nomination, although Gregory had at least the nominal support of Virginia's two senators, John Warner and George Allen, both Republicans.  I strongly suspect, although I can't swear, that the two senators' principal concern was not with the nominee's scholarship or theory of law, but with the fact that they did not want to get waxed in the press as blocking the first African American on the Fourth Circuit.

When Gregory did not get a hearing under Hatch's leadership, Clinton recess appointed him to the Circuit court  --  an extremely unusual move.

The 2000 elections were, to say the least, very close, as all remember about the Presidential contest.  What people remember less well is that they produced a 50-50 tie in the Senate.  Because of the incoming Vice President Cheney, the Republicans would control the Senate's organization.

Harry Reid was having none of it.  He persuaded Vermont Senator Jim Jeffords to defect from the Republican Party and caucus with the Democrats (although nominally Jeffords became an Independent).  Jeffords switched in May 2001.

This created a significant complication for President Bush's efforts to appoint judges, since Patrick Leahy took over as Chairman of the Judiciary Committee.  In order to get nominees through, deals were going to get cut.

One of the deals was that Roger Gregory, who had only a short time remaining on the Fourth Circuit as a Clinton recess appointee, would  get re-nominated by President Bush.  He easily won confirmation.

So yes, you heard that right.  Judge Gregory is a Bush appointee.

Fast forward to today.

Message for Republicans:  Caving in to media-generated pressure and race-tinged politics, and not looking carefully into a prospective judge's view of the law, will come back to bite you.  Stick to your principles.

15 Comments

Interesting back story. But he was only one of ten judges in the majority appointed by both GOP and Dems. And he wrote a brilliant, well-reasoned, opinion that persons who respect the Constitution and separation of powers should applaud.

Message for GOP & Dems: When selecting judges/justices integrity and devotion to the rule of law matter more than party affiliation.

Not likely that message will get through any time soon.

Paul, that's not true - every single one of the ten judges in the majority was a Democratic appointee (including Gregory). The three GOP appointees all dissented. Furthermore, I'm not sure what to respect about entirely ignoring [binding] precedent, let alone the Constitution itself, in order to "resist" the Democratically elected president. The idea that Trump somehow doesn't get the same deference afforded to every other president is an egregious violation of the proper role of the judiciary.
-Jihan

So Jimmy Carter didn't have the right to ban Iranians from coming to the US--who knew?

Appreciate the reminder of this story, Kent, which reinforces for me how politically foolish former Prez Obama was for trying to get above "media-generated pressure and race-tinged politics" in the SCOTUS nomination of Merrick Garland. Folks truly understanding this kind history had to know that the political conversations over, say, Judge Ketanji Brown Jackson would have been radically different than the political conversations over Garland. For that reason and many others, I think folks here should be so very grateful Prez Obama bungled (and Prez Trump mastered) SCOTUS politics in 2016.

Jihan,

I stand corrected: Gregory was the only one in the majority appointed by a GOP president (albeit with the twist that Bill pointed out).

As for the rest of your comment. What binding precedent, or constitutional provision, was ignored? It was, as the majority opinion points out, a case of first impression.

What would an objective observer believe was Carter's primary purpose? National security, religious bigotry, or something else?

Likely national security and punishing the Iranian regime. So what?

The idea that someone with no connections to the US has an enforceable right to come to the US is palpably wrong--and it's wrong on so many levels, not the least of which is society's right, through the people it elects, to control who gets to come here.

Imputed bad motives on the President's part don't grant rights to aliens who wish to be here. By your rationale, Trump would be forbidden from deporting criminal aliens who are Muslims, which is so wrong it needs no explanation.

Paul, if you read the dissents they explain quite clearly just how wrong - and in direct violation of precedent - the majority's reasoning is. It's hardly a case of first impression; the Supreme Court has repeatedly confronted immigration restrictions and determined that judicial scrutiny of such should be minimal at most. Even the ACLU's own lawyer admitted at oral argument that under any other president the EO would be entirely Constitutional.
-Jihan

I agree, Jihan, "under any other president the EO would be entirely Constitutional." But that's because no other president (during his/her campaign or after being sworn in to office) would have, like Trump, repeatedly, on numerous occasions, and in different ways, called for a "total and complete shutdown of Muslims entering the United States."

This case is sui generis. Or, in the words of the majority, extraordinary and rare. Because of the unique, once-in-a-lifetime, facts, I suspect the Supreme Court (assuming it gets to the Court) will not be as concerned about finding a workable limiting principle (when addressing alleged national security concerns of the executive branch under Trump in the context of First Amendment religious freedom).

Rather, I suspect that the Court will uphold the tripartite presumptions & burdens "primary purpose" test that the 4CA majority adopted to address Trump's outrageous religious bigotry. Bigotry never seen before from an American president (but, see, Korematsu). And, hopefully, never seen again.

" Bigotry never seen before from an American president (but, see, Korematsu). And, hopefully, never seen again."

Take a history course. Woodrow Wilson alone re-segregated the Federal workforce, would hold viewings in the WH of "Birth of a Nation", and referred to the KKK as "the great Ku Klux Klan." I can come up with several more presidents.

Furthermore, even if you can prove the POTUS is "bigoted" (calling for a "total and complete shutdown of Muslims entering the United States" proves no such thing), you have to show that the EO was a result of that bigotry.

Even then it is probably not enough.

The decision is a sham. It is such a sham, I even have a hard time believing that anyone could support the decision on its merits. It is about thwarting this president, not any real concern about bigotry or the rule of law.

Courts are bad enough doing their assigned tasks (see, e.g., Miranda) and still worse at freelancing.

To have courts appoint themselves the arbiters of motivation, and then strike down an otherwise ADMITTEDLY CONSTITUTIONAL measure undertaken by the executive branch, solely because of the exercise of this self-created psychoanalytic power, is the road to judicial tyranny.

The safeguarding of the nation's security is assigned by the Constitution to the political branches. We may think the motive question is easy in this case, but once the camel's nose is under the constitutional tent, the test will get looser in the next case, and looser still in the one after that, etc., etc.

Unless the courts are to run every aspect of national life, there has to be a limit on what they are allowed to decide. This case goes beyond that limit, as Judge Niemeyer explains.

If Trump is a Bad Person, we have electoral processes to deal with that. He will be there for another three and a-half years; judicial supremacy will last far longer, and represents more of a threat in the long run.

That said, I am now going to return this thread to its subject matter, which is how Judge Gregory got his job, and, more generally, Congress's treatment of judicial nominees and the nominating process. That will be an extremely important topic going forward. Let's please keep additional comments thus confined.

So constitutional for other presidents, but not for Trump.

Sillness.

Could courts have considered Obama's "White man's greed runs a world in need?"

Bill, are you saying that if an executive branch action is facially valid, even the most obvious form of discriminatory intent should not cause a judge to strike it down (lest they be appointing themselves "arbiters of motivation")?

For example, if a President said when announcing the order that the order was constructed to maximize harm to people of the Muslim faith, because of his personal animus towards Muslims, and that the national security purpose of the order was a sham, should courts not consider that when deciding whether or not to uphold the action?

It's one thing to argue courts should be cautious before striking down otherwise facially valid executive actions based on intent. But the Supreme Court have been pretty clear that intent matters in related contexts (such as racial discrimination), even when the action in question would otherwise be legal (such as in Arlington Heights, where the court examined intent despite acknowledging no racial discrimination on its face). While perhaps the immigration/national security context might raise the bar for such a challenge, it would be odd (and perhaps dangerous) to rule out considering intent entirely.

1. "Bill, are you saying that if an executive branch action is facially valid, even the most obvious form of discriminatory intent should not cause a judge to strike it down (lest they be appointing themselves "arbiters of motivation")?"

Questions that begin, "Bill, are you saying..." are just a way of putting words in my mouth. If you want to know what "I'm saying," it's easy: I already wrote what "I'm saying." I tend to write exactly what I mean, neither more nor less.

2. Let me reiterate: I would like to return this thread to its subject matter, which is how Judge Gregory got his job, and, more generally, Congress's treatment of judicial nominees and the nominating process. Let's please keep additional comments thus confined.

So John, would Obama's "white man's greed runs a world in need" comment be admissible on his administration's race preference stances?

What about Sotomayor's express linking of the quality of judging with ethnicity--the infamous "wise [sic] Latina" comment?

The problem with your argument is that, at the end of the day, aliens without the US don't have the right to come here and hence they don't have the right to challenge the "why" of why they cannot come here.

This isn't hard.

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