Judge Jay Bybee, joined by four members of the court, did not mention Trump by name.
But the opinion decried “the personal attacks” by parties to the case on judges who blocked the president’s first executive order, including U.S. District Court Judge James L. Robart in Seattle and the three appellate judges who upheld Robart.
Trump is the only party to the case who has leveled such personal attacks, most notably when he referred to Robart as “the so-called judge,” suggested that Robart was putting the country in “peril,” and tweeted that the appeals court panel’s ruling upholding Robart was “a disgraceful decision!”
Even while the panel was weighing that ruling, he gave a speech that appeared to be an unsubtle effort to influence it.
“If these judges wanted to help the court in terms of respect for the court, they’d do what they should be doing. It’s so sad … I don’t ever want to call a court biased, so I won’t call it biased,” he said. “But courts seem to be so political.”
The five appeals court judges wrote that they believed the court should have deferred to the administration on the executive order, citing Supreme Court precedents on immigration and national security.
But then, at the end of the 29-page dissenting opinion, Bybee, joined by Judges Alex Kozinski, Consuelo M. Callahan, Carlos T. Bea and Sandra S. Ikuta, wrote an unusual aside, saying he wished “to comment on the public discourse that has surrounded these proceedings.” He went on:
Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of bounds of civic and persuasive discourse — particularly when they came from the parties.It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.”
Coming from Bybee, the statement had particular significance. He was head of the Office of Legal Counsel in the Department of Justice under President George W. Bush and signed the so-called “Torture Memos” in 2002 permitting “enhanced interrogation” techniques on detainees.
Another 9th Circuit judge, this one concurring with the majority’s refusal to rehear the case, appeared to be referencing Trump as well. “I am proud to be a part of this court and a judicial system that is independent and courageous,” wrote Judge Stephen Reinhardt, “and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.”
The 9th circuit’s action came on the same day a federal judge in Hawaii blocked Trump’s second travel order.
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