2017—By a vote of 10 to 3, the en banc Fourth Circuit affirms a district court’s nationwide injunction on President Trump’s executive order that temporarily bars immigration from six majority-Muslim countries. That order spells out that each of the six countries “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” But Chief Judge Roger Gregory, author of the majority opinion, looks to campaign statements by candidate Trump to dismiss the order’s stated reasons as “a pretext for what really is an anti-Muslim religious purpose.”
In dissent, Judge Paul Niemeyer (joined by Judges Shedd and Agee) faults the majority for violating the Supreme Court’s precedent in Kleindienst v. Agee (1972), “which held that courts are precluded from ‘look[ing] behind’ ‘facially legitimate and bona fide’ exercises of executive discretion in the immigration context to discern other possible purposes.”
In October 2017, the Supreme Court will vacate the Fourth Circuit’s judgment on the ground that the expiration of the relevant provision of the executive order meant that there was no longer a “live case or controversy.”
2022—Don’t ignore the efforts of judicial bureaucrats to push judges leftward. In a memo to all federal judges, Tiffany D. Blakey, the Fair Employment Practices Officer at the Administrative Office of the United States Courts, celebrates “National LGBTQ+ Pride Heritage Month” and recommends a reading list of LGBTQ+ books. As one commentator sums up the too-vulgar-to-quote details of his review of the list, it’s “all trashy softcore and romance novels” and does not contain “any serious title about LGBT history or life.”
2022—The Mexican American Legal Defense and Educational Fund slams President Biden for his “ongoing shabby treatment of the Latino community” in judicial nominations. MALDEF’s condemnation of Biden provides a stark illustration of the incoherence of the Left’s demand for diversity.
MALDEF complains that there has never been a Latino judge on the D.C. Circuit. But one big reason for that is that MALDEF itself led the way in opposing President George W. Bush’s nomination of the superbly qualified Miguel Estrada to that court two decades ago.
Amazingly, MALDEF complains that “Latinos have not received nominations in proportions that are multiples of population parity,” even as it acknowledges that “Latinos have received about 20 percent of the Biden nominations[—]equivalent to the Latino proportion of the nation’s total population.” (Emphasis added.)
If you’re going to play the diversity game, the proportion of the nation’s lawyers would seem a much more sensible benchmark (though even that dramatically overstates the percentage of lawyers with the requisite experience and qualifications to be considered for a federal judgeship). By that standard, Biden has over-nominated Latinos by a factor of four. Indeed, Latino judges as of the time of MALDEF’s complaint already make up more than nine percent of active judges—nearly double the percentage of lawyers who are Latino.