Judge Neil Gorsuch speaks after President Trump introduces him as his nominee for U.S. Supreme Court Associate Justice Jan. 31, 2017.

The timing of the confirmation of U.S. Supreme Court nominee Neil Gorsuch could impact President Trump’s controversial temporary action barring nationals from seven countries from entering the United States.

If the current stay on the immigration ban ultimately is upheld by a federal appeals court, the case could reach the U.S. Supreme Court before Gorsuch is confirmed, where it likely would be upheld by a 4-4 vote, says former assistant U.S. attorney Andrew McCarthy.

“The Supreme Court operates more like a super-legislature than a court,” McCarthy told WND. “So I expect the four left-wing judges to support a left-wing policy result.”

On Sunday, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit denied an initial request by the Trump administration to reinstate its immigration action. A federal judge in Seattle on Friday granted a nationwide temporary restraining order blocking the ban. The appeals court’s refusal to intervene immediately means affected travelers can enter the U.S. until at least Monday as both sides in the case file responses.

McCarthy, a noted counter-terrorism analyst, said regarding a possible appeal to the U.S. Supreme Court that “because not all the conservative justices are reliably limited by law or receptive to arguments for judicial restraint, it is more likely that the four liberal justices would pick up a vote than that they would break ranks.”

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“The law is very strong on Trump’s side,” he said, “but the Ninth Circuit is notorious for departing from the law, and I believe the three-judge panel that has the case has a Carter and an Obama appointee on it.”

McCarthy noted the Ninth Circuit has a “procedural escape hatch” if it wants to avoid ruling on the merits: Preliminary injunctions are generally not appealable and litigants usually have to wait until there is a permanent injunction.

Republicans are hoping Gorsuch will be confirmed by early April.

Trump, on Jan. 31, announced his selection of the judge, a George W. Bush appointee to the U.S. Court of Appeals for the Tenth Circuit, to replace the late Associate Justice Antonin Scalia.

Gorsuch, regarded as a constitutional originalist in the mold of Scalia whose selection has been met with widespread affirmation by conservative activists, will first undergo the scrutiny of the Senate Judiciary Committee, which will hold hearings and decide whether to send the nomination to the full Senate.

The panel, chaired by Republican Charles Grassley, has 11 Republican senators and nine Democratic senators.

In the full Senate, a simple majority is needed for confirmation, but Democrats can prevent a vote through a filibuster, which requires a 60-vote super-majority to defeat. However, Republican leaders have indicated they might use the so-called “nuclear option” deployed by former Senate Majority Leader Harry Reid, eliminating the filibuster.

Judge’s false claim

As WND reported over the weekend, the judge who issued the stay on Trump’s executive order temporarily barring entry to the U.S. by those from Iraq, Iran, Syria, Yemen, Sudan, Libya and Somalia erroneously claimed in his courtroom that no person from those countries have been arrested in the U.S. since 9/11.

In a courtroom exchange Friday with Department of Justice lawyer Michelle Bennett, Judge Robart, asked, “How many arrests have there been of foreign nationals from those seven countries since 9/11”?

“I don’t know the specific details of attacks or planned attacks,” said Bennett, who is from the Department of Justice’s Civil Division.

“The answer to that is none, as best I can tell,” said the judge.

But travelers and immigrants from the seven countries, indeed, have been involved in the murders of Americans and other heinous crimes.

Some of the better-known recent cases involving travelers from countries on the watchlist include Somalia-born Dahir Ahmed Adan, who wounded 10 people in a stabbing spree in St. Cloud, Minnesota, last September, and Somali refugee Abdul Razak Ali Artan, who attacked 11 Americans with a car and then a knife on the campus of Ohio State University.

Yemen-based imam Anwar al-Awlaki, who traveled frequently to the U.S. before he was killed in a U.S. drone strike, influenced many jihadist attackers, including Nidal Hassan, who shot fatally 13 people and injured more than 30 others at Fort Hood in Texas in 2009.

Two Iraqi refugees who resettled in Bowling Green, Kentucky, were arrested and convicted of providing weapons and other material support to al-Qaida in Iraq in 2011.

The Trump administration chose the seven countries for the watch list because they were designated by the Obama administration as essentially lawless nations from which terrorists are known to be traveling to evade identification.

Trump’s executive order stated: “Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee-resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.”

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On Saturday, Trump said on Twitter: “What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?” He added that “very bad and dangerous” people may now come into the U.S. because of the judge’s “terrible” ruling.

Earlier, Trump called the judge who issued the temporary restraining order a “so-called judge” and vowed that the order would be “overturned!”

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