Appeals Judge Clifton ’72 will rule on immigration case argued by Flentje ’92

August Flentje ’92 argued Feb. 7 on behalf of the Justice Department in favor of the executive order banning immigration from seven countries in front of a panel of three judges, which included Senior Judge Richard Clifton ’72 of the United States Court of Appeals for the Ninth Circuit.

The Ninth Circuit Court of Appeals in considered one of the most liberal federal courts in the country. The other two judges set to hear oral arguments were nominated by Presidents Barack Obama and Jimmy Carter.

Flentje, the Special Counsel to the Assistant Attorney General, represented the Trump administration in the appeal of the case State of Washington, et. al. v. Donald J. Trump et. al., which seeks to reinforce the executive order after it was stayed by a district court. The executive order affected citizens of Syria, Yemen, Iran, Iraq, Sudan, Libya, and Somalia, banning travel from the countries for 90 days, refugees for 120 days, and refugees from Syria indefinitely.

On Feb. 3, U.S. District Judge James Robart issued an injunction against the executive order, which lifted the immigration restrictions. The Justice Department appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.

After the firing of Acting Attorney General Sally Yates last week, Flentje became one of the most experienced appellate lawyers in the Justice Department. During his tenure at the department, Flentje has participated in cases about the legalization of gay marriage and the detention center at Guantanamo Bay.

He grew up in Wichita, Kansas and majored in politics at the University, where he took creative writing classes with Professor Emeritus in the Humanities Joyce Carol Oates. He graduated from Georgetown University Law School, and worked for former Sens. Nancy Kassebaum and Bob Dole.

“He’s a civil servant, and I think he’s been very careful,” said Flentje’s father, Edward. “We have family members protesting what’s going on, but he plays it pretty close and I think has a deep sense of duty, representing to the best of his ability the president within the law and the Constitution.”

The judges scheduled to review the case by phone include Senior Judge Clifton and Judges William Canby and Michelle Friedland, also of the Ninth Circuit. Clifton was appointed by President George W. Bush to the Ninth Circuit in 2001 and was confirmed by the U.S. Senate in a vote of 98-0. He was endorsed by former Sens. Daniel Akaka and Daniel Inouye, who were both Democrats.

Clifton is a Republican who grew up in Indianapolis and Chicago. He graduated with a degree from the University in 1972 and from Yale Law School in 1975. Clifton then moved to Honolulu, Hawaii, where he clerked for Judge Herbert Choy of the U.S. Court of Appeals for the Ninth Circuit. Clifton spent his career working in Hawaii, performing business and commercial litigation at the law firm Cades Schutte Fleming & Wright, where he argued cases in front of the Ninth Circuit. He served as an adjunct professor at the William S. Richardson School of Law at the University of Hawaii and was also an active member of the Hawaii State Bar Association. Clifton took senior status as a federal judge on Dec. 31, 2016, which is a form of semi-retirement.

In 2006, Clifton was one of the judges responsible for the decision to uphold the imprisonment of journalist Josh Wolf. Wolf was jailed for refusing to turn over video recordings from a demonstration in California and served 226 days in prison — longer than any other journalist in the U.S. has served for withholding materials.

Whatever the decision of the Ninth Circuit Feb. 7, the case is likely to be appealed to the U.S. Supreme Court. According to The New York Times, the appeals court is “skeptical” of the arguments to reinstate the ban, and the final ruling is not expected to come until some time next week.