On Judicial Impartiality (or Lack Thereof) in Immigration Cases

By Dan Cadman on June 8, 2017

What do you do when so much bias is exhibited in a case that one of the parties becomes convinced it's unlikely to be treated impartially? If it's at the federal district court level, then a request for change of venue could be filed if the problem appears to be finding an unbiased jury. If the problem appears to be bias exhibited by the presiding judge, the party can ask the judge to recuse him- or herself, and if he or she refuses, then perhaps file a motion or interlocutory appeal requesting that someone above the judge take a look at the prejudicial statements or conduct to determine if the judge should be removed and substituted.

But what do you do when the bias is pervasive, and it is at the appellate level? Where do you go to seek someone more impartial to hear the case on appellate review?

Unfair as it is, I don't think there is anything one can do, except ask the whole circuit court to re-hear a case en banc that has already been heard by one of its three-judge panels — which may or may not happen. But even when it does, if, generally speaking, the entire circuit is heavily composed of mostly liberal and activist judges, that doesn't help much. That leaves only the Supreme Court as a last resort, doesn't it?

The federal Ninth Circuit Court of Appeals in San Francisco has become infamous for its frequent rulings against the government in immigration matters, often using strained logic or progressive thinking to reinterpret doctrine. As I have noted, they are among the most overturned circuit courts in the country when their cases are brought to the Supreme Court, but they rest comfortable in the knowledge that only a small fraction of cases are ever actually heard by the Supreme Court, for reasons having to do with litigating costs and the workload limitations of the Court itself. Thus the circuit judges often prevail simply by getting the last word, even when they ought not to.

A classic example of this was brought to light recently by my colleague Art Arthur in his recent blog post, "The Ninth Circuit Tees Off on ICE Enforcement". Ironically, in the case Arthur discusses, the circuit court did rule in favor of the government, apparently feeling boxed in and unable to come up with creative reasons why it could overturn the rulings of lower courts and tribunals. Forced to uphold an order of removal, the circuit judges nonetheless felt the need to engage in extraneous bad-mouthing (in dicta, as it's called — leave it to lawyers to have Latin phrases for everything) against the decision they disliked.

As Arthur notes, the circuit judge who wrote the majority opinion said:

We are unable to prevent Magana Ortiz's removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government's decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.


Oh the horror. A judge who is forced to set aside his personal feelings to actually adjudicate a case according to the plain letter of the law. How sad; how painful.

But there is another angle to this matter. As many readers are aware, the Supreme Court is being asked by the Trump administration to review an important matter that fell victim to the Ninth Circuit's activist thinking, namely the "Muslim Travel Ban" executive order, which was blocked in part because the Ninth Circuit looked behind the four corners of the document to examine the words of Donald Trump. (The "no funding for sanctuaries" executive order is also undoubtedly headed in that direction as well.)

So my question is this: If the Ninth Circuit can take into account Donald Trump's tweets and campaign rhetoric in making a judicial ruling on his executive order(s), should not then the Supreme Court carefully examine the comments and dicta rendered by the Ninth Circuit in its decision-making on immigration matters as well, given the self-evident nature of the anti-enforcement bias they reveal?

In the meantime, I reiterate a thought I previously put forward. Maybe it's time for Congress to break up this smug, self-contained coterie of liberal activists by splitting the court into two or three different circuits (see here and here).