RUSH: Now, to the Ninth Circus, everybody was expecting that the circus would rule yesterday, and then they stated just before the program ended, right before the program ended yesterday that they would not have a decision yesterday. So now everybody is breathlessly waiting today at this moment. The media is breathlessly waiting for the decision because they are convinced that the Ninth Circus is going to find for Judge Robart and continue to silence and shut down Trump’s executive order and his policy of vetting refugees, extremists, terrorists, and others who wish to do harm to the United States.
The Democrats and the media want those people, I guess, to be able to get into the country. But as my good amigo Andrew McCarthy wrote today, there’s another thing, another direction that the Ninth Circuit could go. They could send it back to Robart. And the thinking on this is that Robart didn’t rule on the law. Robart’s TRO, temporary restraining order, is really personal policy preferences. I mean, Robart’s arguments are all about the moral aspects of what Trump is doing and the statistics about how many people from these seven countries have committed terrorist acts, so what’s the point of — he didn’t rule on the law. And the point is that an appellate court has to have a judicial ruling on which to rule.
They have to have a ruling from a judge, from a court to review. And they don’t have that from Robart. All they’ve got is, as I say, personal policy preferences expressed as questions. So they could throw it back, and in fact Robart is even preparing for that to happen. Robart is soliciting actual arguments and position papers from the litigants in this case. He is not sitting idle. He is acting as though this case is going to go forward in his court. Not that he would know what the Ninth Circuit is doing, but the fact that he would know — he hasn’t yet had a legal ruling. His temporary restraining order was not based on the law but somebody asked him to stop it and he said okay, fine, I think Trump would lose anyway and for these reasons.
Now, on the court itself in the Ninth Circus, it has been discovered, ladies and gentlemen, there’s one woman and two men on the three-judge panel out there. The woman is Judge Michelle Friedland, and she won the ACLU of Southern California’s LGBT award in 2009, according to Senator Pat “Leaky” Leahy of Vermont. He said she received the president’s Pro Bono Service Award in 2013 for the state bar of California and the LGBT Award from the ACLU of Southern California in 2009. This statement was made by Leahy back on April of 2014 in the Senate stating his approval of her confirmation to the Ninth Circuit.
He was citing these aspects of her as qualifications for her to be confirmed as an appellate judge in the Ninth Circuit, that she had been given an LGBT award, the ACLU, and that she got the president’s Pro Bono Service Award and so forth. So the message is we’ve got an activist judge here. We clearly have an activist judge in Friedland and probably another one. And the thinking is that — I mean, the law on this makes ruling here a slam dunk. If you’ll you’re looking at is the law, Judge Robart should be overturned, the TRO should be lifted. If you’re just looking at the law, if you are just looking at the statute. But of course we’re not.
Again, within the vein of sticking with the law, the Ninth Circuit could send it back to Judge Robart and say, “Okay, judge, be a judge on it instead of left-wing hack and actually make a judicial ruling. We’re sending it back to your court for final disposition.” The fact that they haven’t done that tells eager court watchers that the Ninth Circus is actually looking to rule on this, and that means they will probably rule against Trump and in favor of Judge Robart which then triggers the whole thing going to the Supreme Court if it is desired.
And then we start talking about what is an expedited schedule at the Supreme Court. Expedited for FedEx is one or two days, sending UPS expedited for the Supreme Court could be a couple, three months. I fully expect that at some point this thing is gonna get torn up and they’re gonna rewrite it. They’re gonna do a new executive order or a series of them, ’cause I don’t think Trump is tired of winning. I think he’s just gonna keep flooding the zone on this kind of stuff to ultimately get what he wants. But anyway, we’re keeping a sharp eye on whatever comes out of the Ninth Circuit.
The most surprising thing they could do would be to overturn Robart and say that his ruling really doesn’t have any legal oomph to it and reinstate Trump’s executive order. That just does not seem possible given the three judges on this panel, but stranger things have happened. So again the options, that, or they rule in favor of Robart and the TRO remains and then they have to go to the Supreme Court. Or the third option, they send it back to Judge Robart and say, “Make a judicial ruling on this, bud, and then we’ll take it from there.” Which, Robart, as I say, is already scheduling the arguments and the hearings and the time on his calendar for that to happen.