two of the judges were appointed by democrats william canby and friedland, -- michelle friedland and one by a , republican, richard clifton. justice department lawyer august flentje argued trump's executive order was constitutional. >> congress has expressed the authorized by the president when it is necessary or when otherwise it would be detrimental to the interests of the united states. that is what the president did here. and the president determination that a 90 day pause was needed for the seven countries at issue here in order to ensure adequate standards -- language from the order -- for visa screening was plainly constitutional. the districts courts order, which contained no assessment of illegality to the order, was in ererror and we encoururage the t tuesday. amy: during his argument justice , department lawyer august flentje questioned the role of the court in reveviewing the president's actions. >> the reason we sought isediate relief and a stay because the district court's decision overrides the president's national secure to judgment about the level of risk. and we hav

william canby and michelle freedland. each side will be 30 minutes to present their case. this is not whether the order itself is constitutional, but whether the stay should remain. there is no timeline for a ruling. regardless of the outcome, though, this could wind up in the u.s. supreme court, something the president says he's ready for. >> how far are you willing to take your travel ban fight? >> we're going to take it through the system. it's very important. it's very important for the think? >> we'll see. hopefully it doesn't have to. it's common sense. you know, some things are law and i'm all in favor of that. and some things are common sense. this is common sense. >> if this does wind up before the high court, there's a poebl possibility of a split decision. a 4-4 tie would resort back to the decision of the appeals court. >>> here in washington, mike pence became the first ever vice president to cast a tie-breaking vote for a cabinet confirmation. >> the senate being equally divided, the vice president votes in the affirmative and the nomination is confirmed. >>

william canby jr. is a jimmy carter appointee. and richard cleften was appointed by george w.> u.s. democrats are holding the senate floor in protest of the secretary of education nomination. democrats plan to stay overnight, they're trying to get one more republican to vote against betsy devos. two republicans siding with democrats and independents. vice president mike pennsylvania will cast the deciding vote if there's a tie. mary bruce tells us why democrats are so passionately fighting the pick. >> democrats vowing to talk for 24 hours straight. >> now is the time to put country before party. a final hail mary attempt to block trump's pick for education secretary. >> we need one more republican to join us. >> two republicans have already said they will not support her. if just one more opposes her confirmation will fail. >> devos, a strong supporter of school vouchers is under fire for her lack of experience in public education. >> you never attended a public school did you? >> correct. >> and your children did not either, correct? >> correct. >> and you've never taught at

william canbi jr. appointed by george w. bush and michelle freeland appointed by barack obama. so far the panel has not made a ruling. but to immediately restore the ban. the case before the ninth circuit would focus on the administration. for washington and minnesota, which argues they would harm their economy. others have joined in filing a part of the brief. almost 100 tech companies and the aclu and the group of the national security officials, they could battle with albright. there was no national security purpose for such a ban. they reasserted the authority of the president saying, "the state asks the course to take the extraordinary step of second guesses a national discussion made by the president himself. all arguments are set for 3:00 p.m. tomorrow over the phone. each side will have about 30 minutes to make their argument. a ruling could take one day. monty francis ktvu fox 2 news. >>> and tonight the opposition to the travel ban and why they argue they would damage their ability to innovate. >> ruth bater is in the bay area tonight after talking to the faculty. new

william canby jr. and michelle t. freedland appointed by judge obama. the third judge is considered moderately conservative. this court has a huge reputation for being liberal. once ruling that the phrase "one nation under god" be removed from the pledge of allegiance and nativity scenes be banned from south california parks. whatever decision the ninth circuit court comes to, it will likely be appealed to the supreme court. because we're still short one supreme court justice, a 4-4 tie is likely, which means the ninth circuit route ruling would stand. harris? >> all right. and i understand now, too, 100 technology are lining up to fight the president's ban. so they're joining this effort. >> correct. including companies like apple, facebook and dozens of others. they argue the president's ban negatively effects the job market. they says it hinders american companies to attract great ta tale talent, makes it more difficult for american firms to compete in the international marketplace. a study from a northern california think tank says 37% of silicon va

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. later, around took it off the launch. the reaso

william canby junior, appointed by jimmy carter, judge richard cliff top, appoint by judge but and michelle friedland, appointed by barack obama. on sun date refused the white house's request to immediately restore the ban. the case before the 9th crier kit centers on a challenge to the trump administration from the states of washington and minnesota which argued the ban wons constitutional and would harm their economy. others have since joined in to challenge the ban filing friend of the court briefs including a group of law procedures almost 100 tech companies who argued would it damage their ability to innovate. the aclu and a group of former national security officials including madelyn albright and john kerry who said there was no national security purpose for such a ban. in the brief filed late this afternoon the justice department says, "the state asks the courts to take the extraordinary step of second- guessing a formal national security judgment made by the president himself. oral arguments have been set for tomorrow at 3:00 p.m. over the phone. each side will have 30 minutes to a

senior circuit judge william c. canby, still serving senior level at 85 years of age. he was appointed nearly 40 years ago by president jimmy carter. happens to be the brother-in-law of walter mondale. 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

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

judge richard clipton based in honolulu the sole republican appointee, judge william canby jr. and judge michelle freeland based in san francisco is former clerk of sandra day o'connor. >> the court, it will be a quick emergency motion on whether or not the ban should be blocked while the issue of its constitutionality makes its way through the court. >> reporter: while the legal fate of trump's travel ban remains unknown, today the man in charge of implementing the ban, secretary kelly, took the blame for its rocky start. >> in retrospect, i should have, this is all on me, by the way, i should have delayed if just a bit so that i could talk to members of congress, particularly the leadership of the committees like this to prepare them for what was coming. >> we are told after the hearing, the judges will confer and make a decision. the court says not to expect a decision today but likely one day this week. we're told, wolf, that hearing is now under way. >> it's going to be critically, critically important. we're going to go to that hearing in a moment. i want to quickly go ov

judge william canby, an appointee of jimmy carter is out of phoenix. 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

favorite of washington state, one in favor of the government, and one is kind of the swing vote, william canby. they're not second-guessing the risk assessment by the president of the united states. they know the president has prerogative. but they're trying to limit the fact, they're groan whether to reverse or reinstate the ban. in order to do that, you have to articulate whether or not there is an actual present risk, and the government could not make that case as of yet. there is the confidentiality, the classified nature of documents, that may be the case, but the doj lawyer did not raise that point, leaving us all to wonder, is it a pretext for religious discrimination or was it in fact an issue of national security. >> stay with me, maria, i didn't get to you but you'll be with me on the other side. thank you very much. the next hour of "newsroom" after the break. feel moisturized without feeling your moisturizer with lubriderm. absorbs in seconds. moisturizes for hours. lubriderm. every body care. nice tells you what you kind want to hear.ifferent... but kind is honest. this bar is mad

senior circuit judge william c. canby, still serving senior level at 85 years of age.appointed nearly 40 years ago by president jimmy carter. happens to be the brother-in-law of walter mondale. 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,