Metropolitan News-Enterprise


Friday, March 17, 2017


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Ninth Circuit Judge Slams ‘Personal Attacks’ on Jurists

Bybee Says Travel Ban Was Lawful, but in Apparent Reference to Trump, Says Courts Should Not Be Politicized


From Staff and Wire Service Reports


President Trump’s original executive order temporarily banning travelers from seven predominantly Muslim nations from entering the United States did not exceed the president’s constitutional powers, but attacks on the judges who ruled otherwise are abhorrent, a Ninth U.S. Circuit Court of Appeals judge has declared.

Judge Jay Bybee did not mention the president by name. But in an opinion filed late Wednesday–which was joined by Judges Alex Kozinski, Consuelo Callahan, Sandra Ikuta, and Carlos Bea—he said such “personal attacks” were “out of all bounds of civic and persuasive discourse.” The opinion was a dissent from a vote of the court’s active judges not to vacate the three-judge panel’s opinion upholding a temporary restraining order against the ban.

The matter became moot when the president chose to issue a new order rather than continue the legal defense of the first. But the panel opinion remains on the books after Wednesday’s order denying vacatur.

Bybee wrote in a footnote:

“…I have written this dissent to defend an important constitutional principle—that the political branches, informed by foreign affairs and national security considerations, control immigration subject to limited judicial review—and not to defend the administration’s policy.”

 The Immigration and Nationality Act of 1952, he noted, permits the president to suspend the entry of “any class of aliens” as he deems appropriate. “Many presidents have invoked the authority…to bar the entry of broad classes of aliens from identified countries.”

‘Political Forum’

The judge warned, however, that attacks on judges “treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles.” Courts, he said, “must be more than that, or we are not governed by law at all.”

Trump referred to U.S. District Judge James Robart in Seattle as a “so-called judge” after Robart suspended the ban. He called the Ninth Circuit decision disgraceful and has said the court is in turmoil.

Judge Neil Gorsuch, Trump’s nominee to the U.S. Supreme Court, has also criticized the president’s attacks on the judiciary, according to U.S. senators.

Reinhardt Concurrence

Judge Stephen Reinhardt responded to Bybee in a brief opinion concurring in the decision not to revisit the panel opinion.

“I concur in our court’s decision regarding President Trump’s first Executive Order….,” he wrote. I also concur in our court’s determination to stand by that decision, despite the effort of a small number of our members to overturn or vacate it. Finally, I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.”

Bybee was a high-ranking official in the Justice Department during the Bush administration when he helped draft legal theories that led to waterboarding and other harsh treatment of terrorism suspects. An initial review by the Justice Department’s internal affairs unit found Bybee had committed professional misconduct. But the Justice Department’s top career lawyer disagreed.

Bybee was confirmed to the Ninth Circuit in 2003 before his role in the torture memos became public.


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