Pros Call For ACLU Lawyer’s Head After Dismal Performance On Trump Immigration Appeal


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Kevin Daley Supreme Court correspondent
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Legal observers across the ideological spectrum panned the performance of ACLU attorney Omar Jadwat during arguments before the 4th U.S. Circuit Court of Appeals Monday.

Jadwat, a seasoned advocate and law professor who leads the ACLU’s immigrants rights project, represents a coalition of civil rights groups challenging President Donald Trump’s second executive order on refugees and migrants.

As a general matter, arguing before a federal appeals court is a daunting task, made all the more difficult when facing a panel of 13. As happened Monday, judges frequently interrupt one another, or the lawyers arguing before them, and can dramatically shift the tenor and trajectory of an argument with a single question. What’s more, two of the appointees on Monday’s panel, Judges Paul Niemeyer and Dennis Shedd, are famously rigorous inquisitors. The case’s high public profile also makes the argument more difficult.

Still, Jadwat struggles are notable in such high stakes litigation. At one juncture, for instance, he conceded that the order would be lawful if it had been issued by another president who had not made inflammatory comments about Islam. Moments later, he contradicted himself and said the order was facially unlawful.

All things considered, some sympathy for Jadwat is certainly warranted. Nevertheless, commentators noted Jadwat struggled to answer predictable questions, made contradictory statements, and appeared to irritate judges otherwise sympathetic to his arguments.

Steve Mazie, Newsweek’s Supreme Court correspondent, suggested advocates of the refugee order would be buoyed by Jadwat’s performance.

Ian Milhiser, justice editor at ThinkProgress, said Jadwat appeared unprepared to answer predictable questions which are essential to forming the court’s opinion.

Leah Litman, a law professor at UC Irvine School of Law and frequent contributor to Take Care, expressed hope that the ACLU would select a new advocate as the case proceeds.

Rob Rosborough, a New York-based appeals practitioner following the case, said one could be left with the impression that the ACLU had lost in the lower court.

Cornell Dolan, P.C., a Boston litigation boutique, called him “stammering” and “unconvincing.”

An opinion is unlikely in the coming days.

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