Tag Archives: Jeffrey Toobin

Ethics Quote Of The Day: Five Ninth Circuit Judges

“We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security against the real suffering of potential emigres. As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy.

For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches — and perhaps especially when we disagree — we have to trust that the wisdom of the nation as a whole will prevail in the end.”

—-Five judges of the U.S. 9th Circuit Court of Appeals  (Judges Jay Bybee,  joined by Judges Alex Kozinski, Consuelo María Callahan, Carlos Bea, and Sandra Segal Ikuta, attacked what Bybee called the “fundamental errors” in the February decision of a three-judge panel upholding the temporary restraining order that blocked President Donald Trump’s first executive order temporarily halting immigration from seven Muslim-majority countries.

The opinion denounced the panel’s ruling as a “clear misstatement of law,” and stated that the five, constituting a larger number of judges than the three judge panel whose contrary holding was described as a “unanimous” 9th Circuit decision, had an”obligation to correct” it for the record.

“We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress,” the five judges stated.

Currently, the President’s revised order is held up by an even more widely criticized temporary restraining order issued by  U.S. District Judge Derrick K. Watson. As well as following many of the same lines of activist judicial reasoning the five judges criticized in their dissent, Judge Watson’s opinion heavily relies  on the campaign rhetoric of President Trump and statements by  chief aide Stephen Miller in TV interviews. This means, as several critical legal experts including Alan Dershowitz  have pointed out, that the exact same order, if issued by Barack Obama, would not have been blocked, and would have been found Constitutional.

Now that’s a double standard!

In criticizing their colleagues, the five judges said that the panel “brushed aside” the clearly controlling case law of Kleindienst v. Mandel, 408 U.S. 753 (1972) and ignored entirely the rulings in Kerry v. Din, 135 S. Ct. 2128 (2015) and Fiallo v. Bell, 430 U.S. 787 (1977).  The Supreme Court in Mandel recognized that First Amendment rights were implicated by an executive action but decided…

“when the executive has exercised its authority to exclude aliens on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment 11 interests of those who seek personal communication with the applicant.”

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A Question For The Zimmerman Verdict Protesters: What Do You Think You’re Protesting?

justice-for-trayvon-martinThe protests of the George Zimmerman acquittal taking place around the country on campuses and cities has been largely peaceful, which is something, I guess.  Nonetheless, pointless and misguided protests are, in my view, unethical, as those of you who recall my posts about the Occupy movement will recall. They waste public resources, inconvenience bystanders, and risk violence, not to mention trivializing a key tool of democracy. If you are going to demonstrate, you are ethically obligated to have your facts and grievances straight and clear, and a practical objective in mind. By this measure, the post-verdict “Justice for Trayvon” protests fail.

What do protesters mean when they chant, “Justice for Trayvon,” now? What do they want, and why do they think it is reasonable to want it? I have listened to and read so many radio hosts, talking heads, experts, lawyers, activists, callers, friends and relatives on this story, and the truth is this: those who are angry about the verdict and want to sign petitions and carry placards about it cannot articulate a single legitimate reason that is supportable by fact or law. Not one.

I say this not because I am a “Zimmerman supporter.” I am not a Zimmerman supporter. Nor am I a  Trayvon Martin supporter, though I am sorrowful that his young life was cut short. This isn’t a team sport, and it certainly isn’t a game. Those who have used this sad tragedy to divide, polarize and demonize belong on a splintered spit in Hell. I have pleaded for an honest, rational, fair justification, other than raw emotion, for the indignation over this case, requiring only that the facts cited actually apply to what happened in Sanford, and not a litany of racism through the centurues. I haven’t received them, and that is because they don’t exist.

So I ask the protesters, both on the streets and campuses and the pundits, activists, columnists and elected officials:

What is it that you want, and why do you think this episode is the fair and rational place to make your stand? Continue reading

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