Busy night. The Ninth Circuit has released an order denying en banc rehearing of the three-judge panel decision in Washington v. Trump from last month (which, readers may recall, had denied the government’s request to stay the district court’s TRO of the original immigration Executive Order). The denial of en banc rehearing is no surprise (the government needed 13 votes from the Ninth Circuit’s 25 active judges). Judge Reinhardt’s concurrence in the denial is no surprise. The dissent (by Judge Bybee and joined by Judges Kozinski, Callahan, Bea, and Ikuta) is, frankly, no surprise. But this passage from Judge Bybee’s dissent should be read, read again, and then laminated:
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.
[Editor’s Note: For more information and analysis, check out Just Security’s Coverage of Immigration and Refugee Executive Order.]