Kevin Daley on November 25, 2018

Nebraska GOP Sen. Ben Sasse endorsed Chief Justice John Roberts’ rebuke of President Donald Trump, saying Trump was wrong to cast a judge who blocked implementation of his new asylum rules as a political actor.

Speaking on “Fox New Sunday,” Sasse seemed to share the president’s frustration with the 9th U.S. Circuit Court of Appeals — the court to which the ruling will be appealed — while urging Trump to restrict his comments to the substance of rulings he disagrees with.

“The chief justice is right, we don’t have Obama judges and Bush judges or Trump judges or Carter or Reagan judges,” Sasse said. “We have judges in the American system, and they take on a black robe where they are supposed to shield their partisan preferences. They are not red or blue state judges. They are judges.”

“There are a lot of bad opinions that come out of the 9th Circuit,” Sasse said elsewhere in the interview. “That’s why they get turned over at a rate higher than any other circuit in the nation, and it’s legitimate to talk about that.”

The 9th Circuit is not actually the most-overturned circuit court. In recent years that distinction has alternated between the U.S. Court of Appeals for the Federal Circuit, which hears patent and trademark cases, and the 6th U.S. Circuit Court of Appeals. It is true, however, that the 9th Circuit’s reversal rate at the Supreme Court is higher than most other circuits.

Though the high number of Democratic appointees to the 9th Circuit gives the court a liberal valence, the court’s reversal rate is not a function of ideological judging.

The days-long spat was set off Tuesday when Trump called the judge who stayed his new asylum rules an “Obama judge.” He went on to criticize the 9th Circuit, noting many plaintiffs who hope to stall his policy priorities bring lawsuits within its jurisdiction on the assumption they have a good chance of success.

Sasse appeared on “Fox News Sunday” to promote his new book “Them: Why We Hate Each Other — And How To Heal” an admonition against partisan tribalism.

Watch Sasse’s whole interview:

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