There was intemperance on the other side as well. The liberal warhorse Mark Green, now part of a “shadow cabinet” monitoring the Trump administration, exulted that “every judge says Muslim Travel Ban illegal.”
All of these figures would do well to try to see both sides of these cases. Who should win? Well, in a universe where the moral arc actually did curve toward justice—that is, in a world where the courts apply the Constitution’s text and history as they should be applied—my answer is that the ban is unlawful. But looking at existing precedent—how the Constitution and the law has been read over time—it could come out either way. The questions it poses are very new.
So commentators should be very careful—lest they descend to Trump’s level—before impugning the integrity of any judge who hears the case.
To begin with, “every judge” has not found either executive order illegal. In fact, depending on whom you include, the judge count is close to even. Two federal district judges—Judge James Robart in Seattle and Judge Leonie M. Brinkema of Northern Virginia—rejected the first version of the executive order. Another, Judge Nathaniel Gorton of Boston, refused to block it. Judge Robart’s order was appealed to the Ninth Circuit. There it was upheld by a three-judge panel; when the active judges considered setting that panel decision aside, five judges explicitly wrote that the panel decision was wrong.
For those scoring at home, that makes the score on that first executive order: Administration 6, Challengers 5. And as I wrote last week, Ninth Circuit Judge Jay S. Bybee’s dissent lays out a cogent argument that this executive order was well within the president’s power. I think the argument wrong, but it can’t be dismissed.
As for the contention that Watson’s opinion is “political”: Where is a scintilla of evidence for this? As The New York Times reported last week, Watson, an Obama appointee, is actually an independent whose career has been largely apolitical. Whether advanced by Fox News hosts or professors, a claim that a judge has thrown over law for politics should be supported by evidence or promptly withdrawn.
And here’s some evidence against that claim: As of this writing, the score on the redrafted, second version of the executive order is 2-0 against the administration. A few hours after the Hawaii decision, a district judge in Maryland issued a narrower order blocking the same executive order. That judge was Theodore Chuang, whose previous billet was deputy general counsel of the Department of Homeland Security.
The two decisions are not identical. Watson, in Honolulu, found the second executive order a violation of the First Amendment’s prohibition of “establishment of religion.” Chuang, instead, found that the order violates an anti-discrimination provision of the Immigration and Nationality Act. That provision forbids discrimination in granting immigrant visas on the basis of “race, six, nationality, place of birth, or place of residence.” Thus, he upheld the order’s limit on granting non-immigrant visas, but ordered the government to process immigrant-visa applications from nationals of the six “designated countries” without regard to the order.