Two More Federal Judges Question DOJ's Census Case Maneuvering
Judges in Maryland and California want to hear more from the government about their effort to swap out lawyers in census litigation.
July 10, 2019 at 05:39 PM
5 minute read
The original version of this story was published on The Recorder
The U.S. Justice Department was dealt two new setbacks Wednesday in its attempt to replace the government's legal teams in the litigation confronting the Trump administration's quest to put a citizenship question on the 2020 U.S. census.
A Maryland judge rejected the government's move to install a new team of lawyers there, while a California judge said the new attorneys' notice of appearance was insufficient. The developments come a day after a New York federal judge called the Justice Department's motion to withdraw counsel “patently deficient.”
The government hasn't explained why it wants to replace its legal teams in the three cases, but the move comes amid the Trump administration's effort to find a way around a U.S. Supreme Court ruling that blocked census officials from adding a citizenship question. Some observers believe the new Justice Department lawyers could make arguments that contradict previous statements made to federal judges.
During a hearing Wednesday, U.S. District Judge Richard Seeborg of the Northern District of California said he did not get the proper filings from the Justice Department to formally accept new counsel in the challenge there.
“If there is going to be a request to change the guard, I will need to have a motion,” Seeborg said during a status conference Wednesday.
The new attorneys seeking to appear for the Justice Department agreed to comply with Seeborg's request. Three of those attorneys—David Morrell, Daniel Schiffer and Christopher Reimer—are the same lawyers involved the order that came out of New York on Tuesday. A fourth attorney, Colin Kisor, has also filed a notice of appearance in the California litigation.
In Maryland, U.S. District Judge George Hazel of the District of Maryland said he wanted assurances from the Justice Department that the legal maneuvering after more than a year of litigation would not delay or disrupt the proceedings.
“While the court is inclined to ultimately permit the withdrawal, under the unique circumstances of this request, more specific assurances will first need to be provided,” Hazel said in an order Wednesday.
Hazel said he wants to hear from the Justice Department about “assurance of an orderly transition between the withdrawing attorneys and new counsel.”
“This requires more than just the effort of the new DOJ team, but the involvement and availability of the withdrawing attorneys,” Hazel wrote. “Thus, the defendants need to provide specific assurances to the Court that one or more of the withdrawing attorneys are remaining available to the new DOJ team, as necessary, or provide detailed reasoning for why such an arrangement is untenable.”
Hazel said the Justice Department's move to swap out lawyers “does not create a clean slate for a party to proceed as if prior representations made to the court were not in fact made. A new DOJ team will need to be prepared to address these, and other, previous representations made by the withdrawing attorneys at the appropriate juncture.”
U.S. District Judge Jesse Furman of the Southern District of New York said Tuesday that the government provided no reasons for the substitution. In federal courts, lawyers are required to provide judges with an affidavit or sufficient reasoning on why they are bowing out of a case. Furman told the DOJ lawyers that he would consider their counsel change request if they submitted a satisfactory explanation of the move.
The new batch of litigators, lead by a former White House lawyer, replaces attorneys who have been arguing for more than a year that the Trump administration was up against a June 30 deadline to finalize census questions and printing.
Yet on June 27, the U.S. Supreme Court partially upheld a ruling in favor of opponents of the census citizenship question. Chief Justice John Roberts Jr., who authored the opinion, said U.S. Commerce Secretary Wilbur Ross' justification that the question enforces the Voting Rights Act “seems contrived.”
Although the Supreme Court decision halted the administration from adding the question by its June 30 deadline, DOJ lawyers will get another shot at arguing the reasoning behind adding the question.
“We at the Department of Justice have been instructed to examine whether there is a path forward, consistent with the Supreme Court's decision, that would allow us to include the citizenship question on the census,” said Assistant Attorney General Joseph Hunt during a telephone conference with a federal judge overseeing a census citizenship question case in Maryland. “We think there may be a legally available path under the Supreme Court's decision.”
Read the Maryland order below:
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