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A Conservative Federal Appeals Judge Won’t Hear Arguments On The Travel Ban Case

The administration will lose a prominent conservative judge from a panel that already has a majority of judges nominated by a Democrat. Fourth Circuit Judge J. Harvie Wilkinson III is related to one of the lawyers working on the travel ban case, a source familiar with the circumstances tell BuzzFeed News.

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When a federal appeals court hears arguments next week challenging the latest version of the Trump administration’s travel ban, a senior, outspoken conservative member of the court won’t be there.

Judge J. Harvie Wilkinson III of the US Court of Appeals for the Fourth Circuit will be recused from the case because his son-in-law, Acting Solicitor General Jeffrey Wall, is involved, a lawyer familiar the circumstances and the policies of the Fourth Circuit told BuzzFeed News. Wall is a lead lawyer for the government in the case.

The Fourth Circuit will hear the government’s challenge to a March ruling from a federal district judge in Maryland blocking enforcement of a section of an executive order that temporarily halted immigration from six majority-Muslim countries. In a rare move, a majority of the court voted last month to have all eligible, active judges hear the travel ban case right away, as opposed to the standard three-judge panel.

There’s no way to know how Wilkinson would have ruled, but his absence further tips the ideological balance of the court in favor of liberals, since judges nominated by Democratic presidents already outnumber those picked by Republicans. It also means the loss of a strong conservative voice — one who has written before in favor of courts deferring to the executive branch on national security issues — on the bench during arguments next week.

Wall has argued in defense of Trump’s travel and refugee ban at federal district courts across the country this year. He is married to Wilkinson’s daughter Porter Wilkinson, a top official at the Smithsonian. The federal judiciary’s ethics rules require lower court judges judges to recuse from a case if a lawyer involved is a family member. The recusal rule applies to relatives “within the third degree of relationship” to the judge or the judge’s spouse.

Wall also clerked for Wilkinson, but that connection on its own wouldn’t require the judge to recuse.

Wilkinson declined to comment, via a member of his court chambers. Fourth Circuit Clerk Patricia Connor said the court would not announce the judges hearing the case until the morning of arguments, as is standard practice at the Fourth Circuit. Each federal appeals court decides when to reveal the judges assigned to a case; some courts announce panels up to a month in advance, others, like the Fourth Circuit, wait until the day of. Wall also declined to comment.

Wilkinson was nominated by President Ronald Reagan and confirmed to the Fourth Circuit in 1984. He’s one of the most prominent conservative federal appeals judges in the country, and has written and spoken in support of conservative jurisprudence. In 2005, he was interviewed by President George W. Bush as a candidate for the US Supreme Court.

There are 15 active judges on the Fourth Circuit — nine nominated by a Democratic president, and five by a Republican. Chief Judge Roger Gregory is considered a Democratic appointee but falls into his own category, since he was put on the bench by President Bill Clinton via a recess appointment and then nominated and confirmed to the same seat during President George W. Bush’s administration. The ideological balance of the court flipped under President Barack Obama, who has six of his nominees still serving as active judges.

One week after the Fourth Circuit hears arguments, the Ninth Circuit will also take up Trump’s executive order on immigration. There, the government is appealing a Hawaii federal district judge’s ruling blocking not only the travel ban, but also a section of the executive order that would suspend the US refugee program. Unlike the Fourth Circuit, the Ninth Circuit — which will hear arguments on May 15 at a courthouse in Seattle — did not vote to hear the case en banc, so a three-judge panel will preside.

CORRECTION

A previous version of this story incorrectly stated the numbers of Democratic and Republican nominees to the Fourth Circuit. There are nine Democratic nominees and five Republican nominees, and six of the active judges were Obama nominees.

Zoe Tillman is a legal reporter with BuzzFeed News and is based in Washington, DC.

Contact Zoe Tillman at zoe.tillman@buzzfeed.com.

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