Judge Jay Bybee, Circuit Judge of the US Ninth Circuit, has written a brilliant dissent in the now moot travel ban executive order case. The dissent is joined by four other judges of the Ninth Circuit. It is a model of what a judicial opinion should be: a clear look at relevant constitutional law, statutory law, and applicable prior case law. The problem in our society is that the left has succeeded in weaponizing our courts to use political tactics to reach desired ends, rather than a dispassionate search for the law. Such methods win momentary political battles, but they destroy what a court should be: a neutral forum dedicated to applying the law. The last paragraph of the dissent is poignant:
Finally, I wish to comment on the public discourse that has surrounded these proceedings. The panel addressed the government’s request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. 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 all 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. I dissent, respectfully.
Of course the comments were made because it was clear that the courts were acting as political forums and issuing political, not legal, rulings based upon the personal predilections of the judges involved. When courts get political any concept of the rule of law flies clear out the window and we are left in a world where the law is merely another tool in the arsenal of those with whom the judges political sympathize. In the context of the Trump administration it is clear that many Federal judges share the view of the left that Donald Trump is not a legitimate president and they will prostitute their courts, and ignore applicable legal precedents, in order to hinder him. God help us all.
Here is the text of the dissent: Continue Reading