canby, a carter appointee, and judge richard clifton, a george w. bush appointee, questioned justice department attorney august flentje on what oversight presidential orders can be subject to. this first is judge can be. >> could the president simply say in the order, we're not going to let any muslims in? >> that is not what the order does here. >> i know that. -- sorry,er relies your honor. >> could he do that? would anybody be able to challenge that? >> that is not what the order does here. >> i know that. >> i do want to get to one key point. >> we would like to get to an answer to that question. it speaks back to the standing issue. if the order said muslims cannot be admitted, would anybody have standing to challenge that? given a rude to make a constitutional challenge of their were such an order. it would be by a u.s. citizen someoneonnection to seeking entry. this is a far cry from that situation. amy: can you comment on this, lee gelernt? >> the administration is trying to say, look, this is not a muslim ban. the word "muslim" does not app

>> well i think it's really important to remember who richard clifton is. he's the bush appointee in that three-judge panel on the ninth circuit. i was listening to the case live on your network and richard clifton is a good, solid republican from hawaii. he was the republican party of hawaii's lawyer. i know him. he is not a liberal and i could hear him sort of trying to get to yes but he was just not persuaded by the government so i think that's what's happening is that even those with their own ideological disposition, their own partisan disposition, their own views on the issues are basically standing up as a bipartisan majority in the judiciary, some in states and cities, some of them within the executive branch of the federal government and saying, look, there are some things that are more important than politics and especially partisanship and at the very top of the list is the rule of law and so richard clifton is no liberal. he may be coming from hawaii but he was appointed by president bush and he was part of that unanimous decision so i thought t

judges were appointed by democrats william canby and michelle friedland and one by a republican, richard clifton. we'll have more on the hearing and the legal battle over trump's muslim ban after headlines. president trump met tuesday with members of the national sheriffs association ring which he lied about the u.s. murder rate, falsely claiming it is the highest it's been in more than four decades. pres. trump: i would say that in a speech and everyone was surprised because the press does not tell it like it is. it wasn't to their advantage to say that. the murder rate is at the highest it has been in the i guess from 45 to 47 years. iamy: in fact, the fbi says the us murder rate is at one of its lowest points in the last 50 years. trump also repeatedldly lied abt ththe murder rate during the 206 campaign trail. during that same meeting, president trump also threatened to destrtroy the career of a tes state senator after sheriff harold eavavenson complained abt the senator's proposed legislation. >> introducing legislation to require conviction before we could receive the forfeiture money and

judge richard clifton, appointed by president george w. bush in 2002. he received his law degree from yale. and judge michelle friedland, born in berkeley and a stanford grad. she is one of the youngest federal judges at age 44. >>> president trump got his way on capitol hill just barely for the first time in history, a vice president cast the tie breaking vote to confirm a cabinet nominee. mike pence's vote confirmed her. they cited her lack of familiarity with public education. >> i do not believe betsy voss should be the next secretary of education. >> 51-50. >> we'll have more on these appointments coming up on "nightly news." >>> a hawaii getaway didn't go as planned for some bay area travelers. this is the route united airlines flight 1111 was supposed to take. this is the path that actually took. it looks like a child's doodle. not long from taking off, the plane developed a mechanical issue forcing the turn-around. before handlanding, it burned o four hours worth of fuel in stormy weather. >>> let's get back to our micro climate weather alert. a

judge richard clifton and man she'll freeland. they haven't made a ruling but on sunday it refused the white house's request to immediately restore the ban. the case before the circuit is on a challenge to the trump administration from the states of washington and minnesota which argued that the babb was not constitutional and would hurt their economy. [inaudible] to challenge the ban filing friend of the court briefs including a group of law professors, 100 tech companies, the aclu and a group of former national security officials who said there was no national security purpose for such a ban. in its response the justice department reasserted the authority of the president saying the state asks the court to take the extraordinary step of second guessing a formal national security judgement made by the president himself. monty francis ktvu fox 2news. >> all right. oral arguments start at 3:00 p.m. today. it'll happen over the phone. each side will get 30 minutes to argue their case. the experts say a ruling could come anywhere fro

are william, appointed by president carter, michelle freeland appointed by president obama, and richard clifton appointed by president george w. bush. the three are being asked to stay a temporary restraining order blocking the president's travel ban, an order put into place last friday by federal judge james robart who was appointed by president george w. bush. >> i find the court can and will grant the temporary restraining order. it temporarily halts the president's immigration ban on people from seven majority islamic countries. critics were quick to point pout nonl of the 9/11 terrorists came from the seven countries on the police and there have been no attacks in the united states from those seven countries since 9/11. early this morning, john kerry and madeleine albright were among those who wrote to the court. they all served national intelligence sxoefts the letter stated president's order ultimately undermines the national security of the united states rather than making us safer. and could it do long term damage to our national security and foreign policy interests endangering u.s. t

judges william can birks richard clifton, and michelle freedland questioned the travel ban.the executive order barring immigration from mostly muslim countries have throne scores of lives into chaos. >> has the government pointed to any evidence connecting these countries with terrorism? >> in 2015 and 2016, both congress and the administration made determinations. >> and he was asked if the travel ban was actually a mumds ban based on the president's reported comments. >> you deny that in fact the statements be attributed to then candidate trump and to his political advisors and mr. giuliani, you deny those statements were made? >> i know. >> opponents of the travel ban say it's discriminatory and causing harm to immigrants. >> we had students and faculty at our state universities who are stand overseas, we had families that were separated. >> he was also questioned about the security risk. >> do you deny that in fact there is concern about people coming from those countries? >> congress determined those countries should not get a waiver from a visa requirement. that is imm

appeals judge richard clifton, an appointee of judge george w. bush, he said he sees no evidence the order targeted muslims. >> i'm having difficulty finding why we should infer religious animus and where the concern for terrorism with those connected with islamic radical sects is hard to deny. >> it's very clear that to prove religious discrimination, we don't need to prove this order harps on muslims or that it harms every muslim. we just have to prove it was motivated in part to harm muslims. >> how do you do that when the vast majority of muslims are not effected. >> there are statements we quoted in our complaint that are shocking evidence of intent to discriminate against muslims. liz: we are talking about 7 countries out of 50 countries dominated by people of the faith. there is no question about the greatness of this faith. it's about jihadis. you have been in the middle east. to these seven muslim countries, isis is running the show in many parts of these countries. do they alowter religions in? isn't this why they are muslim dominated?

richard clifton was put on by george w. bush. he tweeted again this morning about the decision to issue the temporary restraining order going at horrible and dangerous. he spoke about his authority to issue the executive order and then took another partial swipe at the judicial system. >> courts seem to be so political. it would be so great for our justice system if they would be able to read a statement and do what's right. >> in the hearing ramped up last night, one of the judges it said they will make a decision as soon as possible. we're expecting at some point this week. megan? >> meghan: thank you so much. what stuck out to me most is president trump saying the courts were so political. it do you think this is paloma melodically motivated on their part? >> brian: i was shocked that rudy giuliani would actually sway a court. i don't think you should look at campaign rhetoric and have that play a role, but you have to wonder if you have a jimmy carter judge, you have a george bush judge and a barack obama judge, those are the

judges william can birks richard clifton, and michelle freedland questioned the travel ban. the executive order barring immigration from mostly muslim countries have throne scores of lives into chaos. >> has the government pointed to any evidence connecting these countries with terrorism? >> in 2015 and 2016, both congress and the administration made determinations. >> and he was asked if the travel ban was actually a mumds ban based on the president's reported comments. >> you deny that in fact the statements be attributed to then candidate trump and to his political advisors and mr. giuliani, you deny those statements were made? >> i know. >> opponents of the travel ban say it's discriminatory and causing harm to immigrants. >> we had students and faculty at our state universities who are stand overseas, we had families that were separated. >> he was also questioned about the security risk. >> do you deny that in fact there is concern about people coming from those countries? >> congress determined those countries should not get a waiver from a visa requirement. that is im

he was a carter pointy, richard clifton will be on the phone in hawaii.he was appointed by barack obama in 2014. a few minutes ago, the president said he will take the fight to reinstate his order as far as he needs to go. listen here. >> it's very important to the country, regardless of need or whoever succeeds at a later dat date. >> he said that we need to have security in this country. forming argument that the white house is going to argue today. at first of all, the central argument that the doj is making on behalf of the white house is at the president has expressed statutory authority to suspend entry of any class of aliens. at the federal law gives the president broad authority to impose restrictions on entry of immigrant and nonimmigrant third-party aliens for whatever period the president deems necessary. argument number two, this is only a temporary measure while new screening center put in place to protect against terrorist attacks. argument number three, this does not apply to legal permanent residents, unlike what washington state and minne

carter and obama appointees were not persuaded by the white house arguments even that third judge richard clifton bush appointee said he did not agree with the number of the arguments made by the trump team. now, we are going to get a decision soon but i don't think president trump is going to be happy with what's going to come from the ninth circuit. >> don't these judges sometimes on the federal level like to push the buttons and play devil's advocate? >> that's wishful thinking to some degree maybe once in a while but really by and large my experience and experience of people that i have talked to if a judge seems to not like your argument, that judge doesn't like your argument. [ overlapping speakers ] >> thank you. >>> president trump's secretary of education has been sworn in. there was a close vote. for the first time ever a vote from a vice president in this case mike pence broke a tie. democrats tried to get a republican to vote against the confirmation. it didn't happen. lawmakers have been called by parents about betsy devos. >> miss devos is going to shake things up but more important

william william camby junior, judge richard clifton and judge michelle freedland. the seattle u.s. district court judge who stopped what the administration was trying do to keep the immigrants from seven mostly muslim countries out was judge james robart. put in by george bush, a republican, he, of course, was called a so-called judge, somewhat of a shocking tweet to some people when donald trump called him a so-called judge, a lot of name calling but does appear the entire executive order is questioned at having been rushed. where do you stand on it? did they rush to push out the executive order from the trump side? >> no doubt this was rushed. there's no doubt that the agencies have failed to have enough understanding. the airlines didn't know what to do. we have customs officials at airports around the world that are supposed to screen passengers as well as let passengers through. this is part of advanced screening. they didn't know what to do. so the calamity because of this rush job, resulted in the types of consequences that we've seen on tv. look, i worked on the refugee sub

only one of the judges randomly assigned to the case, richard clifton, was appointed by a republican. william canby was appointed by jimmy carter. during yesterday's argument, the judge was hard on the justice department lawyer. >> does the government have any evidence connecting these countries with terrorism? >> a former u.s. attorney under president bush thinks trump will likely suffer another setback. >> listening to them, i think there may be an inclination to leave judge robart's order intact. >> leaving judge robart's decision in fours would leave the restraining order in place. there are others who think that despite this being the ninth circuit the panel could come up with a narrow ruling that would reinstate the travel ban for those who are not green card holders that have never set foot in the u.s. >> james: dan springer, thank you. this is another fox news alert. a u.s. official tells fox news are on has launched another missile from the launchpad where it congested -- conducted a launch last month. photos indicated another rocket was poised to put a satellite in space. la

the third judge, richard clifton, is hawaiian.ven more unusually, he's a republican from hawaii. there are not a lot of republicans from hawaii. he was appointed by president george w. bush in 2002. he just took senior status, which means he, like judge canby is on a lesser schedule. it is an unpredictable group. none of the three have records that would lead you to predict definitely how they would come out one way or another. but we'll certainly know more, if not everything, after listening to them ask questions for an hour. >> it will be fascinating to hear the questions from the judges and the responses from the two sides. gloria, have you ever seen a case like this go before a federal panel with so much at stake, so early in a new presidential administration? >> two weeks in, i can't recall. of course not. and i was talking to some republicans today who were likewise astonished about this development, particularly on a matter of national security, which, after all, this is what this is about. it's about national security. so,

senior circuit court judge richard r. clifton, based out of hawaii, appointed 15 years ago by president george w. bush and circuit judge michelle t. friedland was appointed just two years ago by president obama, notable because at 44, she is among the youngest federal judges in the country. the questions from the judges to both sides of the lawyers were at times very tough. here is a sampling, beginning first with the judges questioning a lawyer for the trump administration. >> has the government pointed to any evidence connecting these countries with terrorism? >> these proceedings have been moving very fast. and the strongest point on that is that in 2015 and 2016 both congress and the administration made determinations that these seven countries posed the greatest risk of terrorism. >> is there any reason for us to think there's a real risk or that circumstances have changed such that there would be a real risk if existing procedures weren't allowed to stay in place while the new administration conducts its review? >> well, th

judge richard clifton and judge michelle freedland. the justice attorney asked the court to strike down the washington state courts nationwide and their restraining orders on president trump's travel ban that had stopped immigration from seven predominantly muslim countries. the washington state attorney noah purcell argues the ban unfairly targets muslims and causes harm. >> we detail a number of universities, standing overseas, families being separated. >> reporter: the special council argues the executive order says nothing about banning muslims in particular. as he got into a lengthy exchange with the judges over whether states and courts should be allowed to overturn the national security decision. >> this is a traditional national security judgment that is assigned to the political branches and the precedent. and the the courts have immediately altered that. >> reporter: the u.s. department of justice argued the president's order should not be renewable by the court and they have a chance to act for the risk. >> is there a reason

the three judges listening to the arguments were william canby in phoenix, richard clifton on the phone and michelle friedland calling in from san jose. they were asked by president trump through his justice department to reject a seattle judge's temporary ruling that blocked the president's ban on immigration from seven mostly muslim countries. that ban, as you know, sparked chaos and protests at airports nationwide until it was lifted last friday. opponents wanted it to stay on hold arguing the president's executive order is unconstitutional and discriminatory. here's some of the back and forth. >> is there any reason for us to think that there's a real risk or that circumstances have changed such that there would be a real risk if existing procedures weren't allowed to stay in place while the administration, the new administration conducts its review? >> well, the president determined that there was a real risk. the president is the official that is charged with making those judgmens. >> are you arguing then that the president's decision in that regard is unreviewable? >> yes. >> it

on the panel, government and states suing trump, and thejudges on the panel, a seniorjudge was richard clifton the government was august flincher, a special counsel to the assista nt flincher, a special counsel to the assistant us attorney general who you heard speaking on the phone. also listening in to that with us was our correspondent in washington, richard lester. iam no was our correspondent in washington, richard lester. i am no expert and it is hard to tell which way it is going. but what was quite interesting as they seemed to be bringing up particular cases and exa m ples of bringing up particular cases and examples of what this travel ban was doing to some people and individuals, to look at whether it was constitutional or not. what they we re was constitutional or not. what they were really doing is looking at previous legal cases to see whether or not they accurately reflected or endorsed the argument that the government lawyer was making. we did actually here to make the bits of information, i think, actually here to make the bits of information, ithink, pertinent actually here t

between the justice department lawyer arguing on behalf of the trump administration and judge richard clifton, listen in. >> we are not saying the case should not proceed, but it is extraordinary for a court to enjoin the president's national security determination based on some newspaper articles. that is what has happened here. that is very troubling second-guessing of the national security decision made by the president. the notion that we are going to go back -- >> you deny that in fact the statements attributed to then candidate trump and to his political advisors in most recently mayor giuliani, do you deny those statements were made? >> no, i would note that judge robart himself said he was not going to look at campaign statements. >> jon: they were arguing over campaign statements went then candidate trump talked about banning muslims into the country. >> it's completely irrelevant. it doesn't matter what politicians say on that campaign trail, they often reverse or retract the things they say. the legal test is is there a rational basis for the president, based on a classified intell

more exchange, this one between noah purcell, solicitor general for washington state, and judge richard clifton. >> we do not need to prove that it harms every muslim, or that it was directed at muslims, just need to prove in part desire to harm muslims. there are statements that are rather shocking evidence of intent to discriminate against muslims given we haven't had any discovery to find out what else might have been said in private. the public statements from the president and his top advisers reflect that intent are strong evidence certainly at this pleading stage to allow us to go forward on >> cornish: and we are joined now by newshour regular marcia coyle, of the "national law journal." all right. so what precisely is the question before the court in. >> this three-judge panel is looking at the government's appeal of a temporary restraining order that was issued by judge robart in seattle, washington. so the court... the three-judge panel is basically going to be looking to see, did judge robart abuse his discretion in issuing that temporary restraining order. the three-judge panel is

also judge michelle friedland appointed by president obama and richard clifton, an appointee of george bush who sits in honolulu. >> we also have 16 states attorneys general who have filed -- they agree with the states of washington and minnesota, and they are saying we agree that this is in violation of the constitution. interesting, but does it do anything to bend the mind of these justices? >> it is very unusual for states to try to join a lawsuit that they didn't bring in the first place. >> are they joining it or just saying we -- >> they're trying to intervene. hawaii is trying to intervene. the other states have filed a brief supporting the arguments. eventually this decision is going to affect every state. it doesn't surprise me you'd have other states step in to try to support the arguments made by washington and minnesota that this ban affects our people and nobody else is here to speak up for them except the states. >> in making its rule, will the three-judge panel weigh in on whether or not there is, in fact, a threat from the types of people of this travel ban keeps out? >

reporter: during the appellate hearing yesterday judge richard clifton asked how the executive order a ban of muslims when muslims from most countries in the world would still be able to enter the united states. >> i have trouble undersnding why we're supposed to infer religious an my must when in fact the vast majority of muslims would not be affected as residents of those nations. reporter: neil, we're waiting for the ruling. we'll let you know when it comes down. back to you. neil: thank you my friend, meantime senator liz warren speaking with reporters after last night's dust-up what she could and couldn't say about jeff sessions. quoting coretta scott king. >> this is about coretta scott king's letter. that is all this is about. she wrote a powerful letter about a important moment in history that directly involved jeff sessions and it directly relevant to the question of whether or not jeff sessions ought to be the attorney general of the united states. and mitch mcconnell didn't want me to read that letter. he stopped me. neil: all right. well it broke decorum of the senate to

senior circuit court judge richard r. cliftonout of hawaii, appointed 15 years ago by president george w. bush and circuit judge michelle t. friedland was appointed just two years ago by president obama,

there were some skeptical cell,ions for pur particularly from judge richard clifton, but overall he seemed better time of it in terms of the theatrics of the oral argument. david: specifically on the issue of the skepticism of the state's case, how can this be muslim directed when such a small portion of muslims are included? what is the answer? paul: in order to be judged unconstitutional, does not have to affect every single member of the class of people who are affected. instead, it has to be shown to intended to be affect some members of that the constitutional provision you would point to would be the establishment clause of the first amendment and/or equal protection clause of the fifth amendment. tweetedresident trump "if the u.s. does not win this case as it obviously should we can never have the security and safety to which we are entitled. politics!" how political is this case? if it gets to the supreme court it will seem quite politicized because they will be very likely to split between republican appointees and democratic appointees, and then would have a political cast. if th

michelle freedland appointed by barack obama, judge camby appointed by jimmy cart sxer judge richard clifton appointed by george w. bush, came up with the decision that was rendered last night. what happens next? we have to wait and see. this from the review journal in nevada, story billed to remove that state and five others from "nutty fifth circuit court may be gaining favor," this is what they report. how big is the ninth u.s. circuit court of appeal? san francisco bay represents nine states, including nevada, 20% of the u.s. population and 40% of the nation's land mass, so big cess looked at bills to split the circuit since 1941 and so big none of the measures has succeeded. this year, however, senators o.whaselesnt w in my experience, extreme vet suggest already takingry o immick o te tweed tlo wdyed s d hi hoss.t es to ceusticehateve deci >>day ni