//  9/9/19  //  Quick Reactions

I recently watched the Ninth Circuit argument in Ramos v. Nielsen, the challenge to the administration’s decision to end Temporary Protected Status for Haiti, Nicaragua, Sudan, and El Salvador. The argument is a pleasure to watch for the lawyers’ performance—Ahilan Arulanantham is a gifted advocate, and Gerry Sinzdak is so good as well.

And then there were the judges, or more specifically, one judge, Judge Ryan Nelson. At the argument, Judge Nelson asked the government whether, if the district court committed “so many” errors, there came a point at which the court of appeals should send the case back to another district judge.

Remanding a case with directions to reassign the case to another judge  is strong medicine. It is rarely done. And there are no reasons to do it here – especially not the reasons Judge Nelson gave. To support the claim that the district court erred, Judge Nelson pointed to some “extra-record” evidence on which the court purportedly relied. The problem is that that evidence was not actually outside the record, as Arulanantham quickly pointed out. The government also quickly noted that it didn’t even ask for the case to be reassigned; this was just something Judge Nelson offered in his zeal to clap back at a judge who had the audacity to rule against the administration.

Things got worse from there, as Judge Nelson (at least twice, by my count), claimed that the Supreme Court “unanimously … UNANIMOUSLY” ruled that extra-record discovery was improper in the census case.

Huh? I’m unclear what census case Judge Nelson is thinking about. I’ve included the actual excerpts  on extrarecord discovery from the Chief Justice’s majority opinion for five Justices in Department of Commerce v. New York. I’ve also helpfully summarized them.

Excerpt #1:

“The District Court invoked that exception in ordering extra-record discovery here. Although that order was premature, we think it was ultimately justified in light of the expanded administrative record.” (Emphasis added)

Excerpt #2:

“We agree with the Government that the District Court should not have ordered extra-record discovery when it did. At that time, the most that was warranted was the order to complete the administrative record. But the new material that the parties stipulated should have been part of the administrative record—which showed, among other things, that the VRA played an insignificant role in the decisionmaking process—largely justified such extrarecord discovery as occurred.” (Emphasis added)

In summary: Five Justices held that the district court should not have ordered extra-record discovery at the same time that it ordered the government to complete the administrative record. These Justices reasoned that the court should have ordered extra-record discovery after the government completed the record. But these Justices also concluded that the evidence that came in during the government’s completion of the record justified extrarecord discovery.

I don’t expect to like very many of the judges that the Trump administration has nominated to the courts of appeal. I do, however, expect the judges to read the opinions they cite—especially when they are citing the opinions to support the idea of punishing a district court judge for deciding a case that raises difficult legal issues. #DoTheReading.


Versus Trump: Are Tax Returns Coming Soon?

7/18/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss the Supreme Court's pair of decisions governing Trump's tax returns. Are they coming soon? Did the Democrats make a mistake in not being more aggressive in invoking the impeachment power? Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Who Decides the Future of the Equal Rights Amendment?

7/6/20  //  In-Depth Analysis

Congress should decide what happens to the Equal Rights Amendment, not the courts or the Executive Branch.

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Pinkwashing the Supreme Court

7/2/20  //  Commentary

The Court’s LGBTQ rulings should not distract from the broader trajectory of its jurisprudence in favor of the privileged.

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