Judge Slaps Down Bid to Delay Census Trial

MANHATTAN (CN) – Refusing to delay a Nov. 5 trial over the addition of a citizenship question to the 2020 census, a federal judge set the stage Friday for a showdown with Supreme Court Justice Neil Gorsuch.

Commerce Secretary Wilbur Ross testifies before a House Committee on Science, Space, and Technology Space Subcommittee and House Armed Services Committee Strategic Forces Subcommittee joint hearing on Capitol Hill in Washington on June 22, 2018. (AP Photo/Manuel Balce Ceneta)

“Time is of the essence,” U.S. District Judge Jesse Furman wrote in 15-page opinion this afternoon.

A unanimous three-judge panel of the Second Circuit also refused to pause the trial in an unsigned order late in the day. In Furman’s Southern District of New York courtroom, a coalition of 18 attorneys general and five civil rights group have been racing against the clock to stop the Commerce Department from probing the citizenship status of U.S. residents. Without a speedy legal victory, the surveys will go to print next summer.

“It would be hard enough for that normally lengthy process to run its course by next May or June — when the census questionnaires are apparently scheduled to be printed — if these cases proceed to trial on November 5, 2018,” Furman wrote. “Granting a stay of indefinite duration could make a timely final decision next to impossible.”

Furman’s scathing ruling attacks the government strategy of delay and contains pointed barbs directed at Justice Gorsuch, who recently wrote a dissent criticizing Furman’s handling of the case.

“It should go without saying that the dissent did not carry the day in the Supreme Court; instead, it represents the views of only two justices,” the opinion states, referring to Gorsuch and Justice Clarence Thomas.

The seven-member majority of the Supreme Court temporarily blocked an order to depose Commerce Secretary Wilbur Ross and stopped there.

Going farther, Gorsuch slammed Furman’s preliminary finding that Ross created a bad-faith pretext to change the census with the end goal of discouraging participation by immigrants of color. The resulting undercounts would reduce political power and funding to blue states.

“Leveling an extraordinary claim of bad faith against a coordinate branch of government requires an extraordinary justification,” the Trump-appointed Gorsuch noted.

Refusing to back down, Furman said that he found that justification in Ross’ sworn and “false” testimony.

“Most significant, the court found reason to believe that Secretary Ross had provided false explanations of his reasons for, and the genesis of, the citizenship question — in both his decision memorandum and in testimony under oath before Congress,” Furman wrote.

Quoting from Gorsuch’s dissent directly, Furman said that the justice pointed the finger in the wrong direction.

“It is the government’s conduct in this case, not the court’s review, that is ‘highly unusual, to say the least,’” Furman wrote.

Ross initially told the House Ways and Means Committee that he added the citizenship question at the Justice Department’s insistence, but Furman noted that the secretary changed that story multiple times since then.

“If those circumstances, taken together, are not sufficient to make a preliminary finding of bad faith that would warrant extra-record investigation, it is hard to know what circumstances would — short of an agency head’s outright confession that his reasons were pretextual (in which case, of course, there would be no need for discovery),” he wrote.

At a recent hearing, Department of Justice attorney Kate Bailey argued that preparing for trial would be expensive, and it would be more efficient to wait for the government to exhaust appeals on pretrial rulings.

Furman replied that this gets typical courtroom procedure backward.

“In other words, spending resources on trial first and seeking appellate review later is the overwhelming norm, not the exception — even though the entry of an erroneous order may require additional expense and effort on the part of both litigants and the district court,’” his opinion states.

Pointing out that the Justice Department factored travel and hotel costs from Washington into trial expenses, Furman noted that the U.S. Attorney’s Office in Manhattan has “dozens of highly qualified lawyers” that typically handle cases in this district.

“The court can only speculate why the lawyers from that office withdrew from their representation of defendants in these cases,” Furman wrote in a footnote. “Whatever the reasons for that withdrawal, however, a party should not be heard to complain about harms of its own creation.”

A representative for the Department of Justice declined to comment, and the U.S. Attorney’s Office for the Southern District of New York did not answer a phone call seeking comment.

Though the Justice Department has said the Supreme Court “invited” further appeals, Furman called this interpretation a stretch.

“After all, if one person says to another ‘you are not precluded from attending my party,’ the latter would be hard pressed to describe the expression as an ‘invitation,’” the opinion notes.

Furman also suggested that the government’s scorched-earth appellate strategy puts the independence of federal judges at risk.

“Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system,” the opinion states. “In addition, the rule is in accordance with the sensible policy of avoid[ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment.”

New York Attorney General Barbara Underwood noted this afternoon that the remaining pretrial depositions should be completed by Sunday. Further pretrial briefings should be complete by Nov. 2.

The attorney general’s spokeswoman Amy Spitalnick characterized the government’s conduct as an attack on the U.S. constitutional order.

“DOJ is flouting the basic structure of our judicial system, first arguing that the lower courts shouldn’t even bother weighing in if SCOTUS will ultimately decide the case, and then jumping to the Second Circuit before the district court even weighed in on their last motion,” she wrote in an email. “And now, multiple courts have again rejected DOJ’s efforts to block our case.”

“Given DOJ’s extensive and absurd attempts to block this case, you really have to wonder what they’re trying to hide,” she added. “We won’t back down from fighting for a full and fair census.”

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