In apparent reference to Trump, 5 dissenting 9th Circuit judges criticize attacks on judiciary

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9th Circuit

The 9th U.S. Circuit Court of Appeals in San Francisco.

Five federal appeals judges appeared to criticize President Donald Trump’s attacks on the judiciary in a dissent on Wednesday that, nonetheless, sided with the president on his power to enact a temporary travel ban.

The five judges on the San Francisco-based 9th U.S. Circuit Court of Appeals commented in a dissent that supported a rehearing by the full court in the travel ban case, the Washington Post reports. The original decision had refused to reinstate Trump’s executive order banning travelers from seven majority-Muslim countries.

The dissent (PDF) by Judge Jay Bybee said that Trump’s executive order “was well within the powers of the presidency” and judges’ personal views on the ban “are of no consequence.” But Bybee went on to say that personal attacks by the parties on judges in the case were “out of bounds.”

Bybee did not specifically identify Trump as the person who had attacked the judges, but the president’s comments received lots of publicity. After U.S. District Judge James Robart issued a nationwide injunction blocking Trump’s travel ban, Trump called Robart a “so-called judge,” labeled his decision “ridiculous” and opined that he had put the nation in “peril.” Trump also said the 9th Circuit hearing on his order was “sad” and “disgraceful.”

Bybee’s statement about the “out of bounds” criticism began at the end of the dissent, which was joined by Judges Alex Kozinski, Consuelo Callahan, Carlos Bea and Sandra Ikuta.

“Finally, I wish to comment on the public discourse that has surrounded these proceedings,” Bybee wrote.

“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.”

The Post says Bybee’s statement “had particular significance” because of a prior controversy in which he signed memos endorsing harsh interrogations of terrorism suspects when he headed the Justice Department’s Office of Legal Counsel.

Trump has replaced the executive order at issue in the 9th Circuit appeal with a new order that has also been enjoined by judges in Hawaii and Maryland. After the Hawaii judge ruled, Trump said he had shown “unprecedented judicial overreach.”

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