Wall Street Journal
By Sara Randazzo and Nicole Hong
February 7, 2017
Three federal appeals judges will step into the spotlight this afternoon in a highly anticipated oral argument over whether to reinstate President Donald Trump’s executive order on immigration and refugees.
At the oral argument in the Ninth U.S. Circuit Court of Appeals, scheduled for 6 p.m. EST, the Justice Department will ask the judges to reverse a restraining order issued by a Seattle judge last week that blocked enforcement of the travel ban.
The Ninth Circuit, based in San Francisco, is the largest federal appeals court, with jurisdiction over nine western states. A ruling could be made any time after the oral argument. Either side could appeal the decision to the Supreme Court, or ask for a hearing from a larger Ninth Circuit panel.
The senior-most judge on the panel was appointed to the bench in 1980 by President Jimmy Carter. A native of St. Paul, Minn., the 85-year-old received his bachelor’s degree from Yale University and his LL.B. from the University of Minnesota. After law school, he spent two years serving in the U.S. Air Force’s legal arm and clerked for Supreme Court Justice Charles E. Whittaker. He later served as a U.S. Peace Corps official in Ethiopia and Uganda.
Judge Canby, who sits in Phoenix, also worked as a special assistant to Walter Mondale, a former Democratic vice president, during his 1966 Senate campaign. Before becoming a judge, he taught constitutional law at Arizona State University and is widely known as an expert in federal Indian law.
In a 2-1 ruling in 2012, Judge Canby was one of two appeals judges who halted deportation proceedings for seven immigrants and asked prosecutors to explain whether the immigrants could avoid deportation under new directives from the Obama administration. At the time, some judges and legislators criticized the decision as an overreach of judicial authority.
Judge Canby wrote a unanimous ruling in 2006 that barred the deportation of an Iranian man in the U.S. with connections to an Iranian dissident group that had been designated as a terrorist organization. Immigration officials said the man posed a danger to national security, but Judge Canby wrote that the man was protected from deportation under international human rights law because he is “more likely than not to be tortured” if returned to Iran.
While serving on the bench, Judge Canby was also part of the group tasked with brokering a peace agreement between Eritrea and Ethiopia in the late 1990s and early 2000s.
In one of his earlier rulings, Judge Canby in 1988 joined another appeals judge in prohibiting the U.S. Army from excluding people based on their sexual orientation. Many of his rulings have sided with gay rights advocates, including a 1990 dissent where he wrote: “To leave on the books the rule that the government can discriminate against homosexuals whenever it has a rational basis to do so is an invitation to tragedy.”
The Hawaii-based judge, a George W. Bush appointee, sailed through a unanimous Senate confirmation vote in July 2002 despite being a Republican from a largely Democratic state.
A graduate of Princeton University and Yale Law School, Judge Clifton has worked since 1975 in Hawaii, first as a clerk on the Ninth Circuit and later as a litigator at one of Honolulu’s oldest and largest law firms, Cades Schutte Fleming & Wright.
The lone Ninth Circuit judge sitting in Hawaii, Judge Clifton, 66, took senior status at the end of last year, which means he is semiretired but still actively sitting on cases.
Judge Clifton has taken part in several contentious immigration cases during this years on the bench. In 2013, he disagreed with two colleagues who ruled that an Afghan man married to a U.S. citizen should have been told specifically why he was denied a visa under a terrorism-related provision. Judge Clifton wrote in a dissent that the couple’s desire for more information doesn’t trump “this nation’s desire to keep persons connected with terrorist activities from entering the country.”
That same year, he joined with two colleagues in a partial dissent to a Ninth Circuit panel’s decision requiring border agents to have “reasonable suspicion” to thoroughly search electronic devices entering the country, saying it would “severely hamstring the government’s ability to protect our borders.”
Judge Michelle Friedland
The newest judge on the panel was nominated by President Barack Obama and confirmed in a 51-40 Senate vote in April 2014.
Before joining the bench, Judge Friedland, 44, worked as a litigation partner in San Francisco for Munger, Tolles & Olson LLP, an elite California law firm co-founded by Berkshire Hathaway vice chairman Charlie Munger.
Judge Michelle Friedland, right, during a 2014 panel hearing on whether Barry Bonds, Major League Baseball’s all-time home-run leader, should have an obstruction-of-justice conviction thrown out.
Born in Berkeley, Calif., she attended Stanford University and later Stanford Law School, studying at Oxford University on a Fulbright scholarship in between. Before joining Munger, she clerked on the U.S. Circuit Court in Washington, D.C., and for Justice Sandra Day O’Connor on the U.S. Supreme Court.
While in private practice in 2009, the American Civil Liberties Union of Southern California honored Judge Friedland for her pro bono work challenging Proposition 8, a statewide ballot initiative that made same-sex marriage illegal.
Arthur Hellman, an expert on the Ninth Circuit and a law professor at the University of Pittsburgh, expects the panel not to stay the injunction in its entirety, but said it is more likely they will narrow the injunction to focus on a smaller group of individuals, like previously admitted aliens who are temporarily abroad now.
For more information, go to: www.beverlyhillsimmigrationlaw.com